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YARIOrS  ERAXCHES  OF  THE  LAW: 
MUth  ilotcs. 


JOH^  WILLIAM  SMITH, 

OF   THE   INNER  TEMPLE,   ESQUIRE,   BARRISTKR-AT-LAW. 
THE  THIRD  AND  FOURTH   EDITIONS   Br 

JAMES   SHAW   WILLES  axd  HENRY   SINGER   KEATING, 

OF  THE   INNER  TEMPLE,    ESQUIRES,   BARRISTERS-AT-LAW    (AFTERWARDS  JUDGES  OF  HER  MAJESTY'S 
COURT  OF  COMMON  PLEAS  AND  MEMBERS  OF   HER  MAJESTY'S  PRI\'Y  COUNCIL). 

THE  FIFTH   AND   SIXTH   EDITIONS   BY 

FRED.    PHILIP   :MAUDE   axd   THOS.    EDWARD   CHITTY, 

OF  THE   INNER  TEMPLE,   ESQUIRES,    BAIUtlSTERS-AT-LAW. 
THE   SEVENTH   AXD    EIGHTH    KIHTIONS  AND 

THE  NINTH    EDITION 

BY 

RICHARD  HENN  COLLINS,  M.A., 

FELLOW   OF   DOWNING  COLLEGE,  CAMBRIDGE,   OF  THE  MIDDLE   TEMPLE,   ESQUIRE, 
ONE  OF  HER  MAJESTY'S   COUNSEL; 

AND 

ROP.KKT    GEORGE    ARBUTHXoT.  yi.X.. 


NINTH  AMERICAN,  FROM  THE  NINTH  ENGLISH  EDITION, 

WITH    ELABORATE   AMERICAN   NOTES  TO  DATE   BY  THE    DISTINGUISHED  AUTHORS  NAMED 
IN  THE   PUBLISHERS'  PREFACE. 


"  It  is  ever  good  to  rt-ly  upon  tin-  l)ook  iit  liirjro;  for  many  timos.  Compendia  sunt 
dispendia,  iiiid  Mvlius  est  pet  en- /on  fes  ijiiuni  sectari  rirulos." —  1  Inst.  UOO  b. 


IN  THREE  VOLUMES.— VOL.  IL 

BOSTON: 
CHARLES   H.   EDSON   &   CO.,   PUBLISHERS. 

1888. 


Copyrifiht,  788S, 

By  Charles  11.  Edson  6c  Co. 


r 


Typography  by  J.  S.  Gushing  &  Co. 


Prhsswork  by  Berwick  &  Smith,  Boston. 


KEECH   /'.   HALL. 


MICH.  — I'd  GEO.  3. 
[reported  dougl.,  21.] 

A  mortgagee  may  recover  in  ejectment,  ivithout  giving  notice  to 
quit  against  a  tenant  ivlio  claims  under  a  lease  from  the  mort- 
gagor, granted  after  the  mortgage  without  the  privity  of  the 
mortgagee. 

\_See  noiv   Conveyancing  Act,  1881,  44  ^  45   Vict.  c.  41,  s.  18.] 

Ejectment  tried  at  Guildhall,  before  Buller,  Justice,  and 
verdict  for  the  plaintiff.  After  a  motion  for  a  new  trial  or 
leave  to  enter  up  judgment  of  nonsuit,  and  cause  shown,  the 
court  took  time  to  consider ;  and  now  Lord  Mansfield  stated 
the  case,  and  gave  the  opinion  of  the  court  as  follows : 

hord  3Iansfi eld  —  This  is  an  ejectment  brought  for  a  ware- 
house in  the  City,  by  a  mortgagee,  against  a  lessee  under  a 
lease  in  writing  for  seven  years,  made  after  the  date  of  the 
mortgage,  by  the  mortgagor,  who  had  continued  in  possession. 
The  lease  was  at  a  rack-rent.  The  mortgagee  had  no  notice  of 
the  lease,  nor  the  lessee  any  notice  of  the  mortgage.  The  de- 
fendant offered  to  attorn  to  the  mortgagee  before  the  ejectment 
was  brought.  The  plaintiff  is  willing  to  suffer  the  defendant 
to  redeem.  There  was  no  notice  to  quit:  so  that,  though  the 
written  lease  should  be  bad,  if  the  lessee  is  to  be  considered  as 
tenant  from  year  to  year,  the  plaintiff  must  fail  in  this  action. 
The  question,  therefore,  for  the  court  to  decide  is,  whether  by 
the  agreement  understood  between  mortgagors  and  mortgagees, 
which  is  that  the  latter  shall  receive  interest,  ;uid  the  former 
keep  possession,  the  mortgagee  has  given  an  im[)lied  authority 
to  the  mortgagor  to  let  from  year  to  year  at  a  rack-rent ;  or 
Avhether  he  may  not  treat  the  defendant  as  a  trespasser,  dis- 

823 

bo/o  I'D 


824  KEECH    V.    HALL. 

seisor,  and  wrongdoer.  No  case  has  been  cited  where  this 
question  has  been  agitated,  much  less  decided.  The  only  case 
at  all  like  the  present,  is  one  that  was  tried  before  me  on  the 
home  circuit  (^Belcher  v.  Collins) ;  but  there  the  mortgagee  was 
privy  to  the  lease,  and  afterwards  by  a  knavish  trick  wanted  to 
turn  the  tenant  out.  I  do  not  wonder  that  such  a  case  has  not 
occurred  before.  Where  the  lease  is  not  a  beneficial  lease,  it 
is  for  the  interest  of  the  mortgagee  to  continue  the  tenant ;  and 
where  it  is,  the  tenant  may  put  himself  in  the  place  of  the 
mortgagor,  and  either  redeem  himself,  or  get  a  friend  to  do  it. 
The  idea  that  the  question  may  be  more  proper  for  a  court  of 
equity  goes  upon  a  mistake.  It  emphatically  belongs  to  a  court 
of  law,  in  opposition  to  a  court  of  equity ;  for  a  lessee  at  a  rack- 
rent  is  a  purchaser  for  a  valuable  consideration,  and  in  every 
case  between  purchasers  for  a  valuable  consideration  a  court  of 
equity  must  follow,  not  lead  the  law.  On  full  considei-ation 
we  are  all  clearly  of  opinion,  that  there  is  no  inference  of  fraud 
or  consent  against  the  mortgagee,  to  prevent  him  from  consid- 
ering the  lessee  as  a  wrongdoer.  It  is  rightly  admitted  that  if 
the  mortgagee  had  encouraged  the  tenant  to  lay  out  money  he 
could  not  maintain  this  action  (a) ;  but  here  the  question  turns 
upon  the  agreement  between  the  mortgagor  and  the  mortgagee  : 
when  the  mortgagor  is  left  in  possession,  the  true  inference  to 
be  drawn  is  an  agreement  that  he  shall  possess  the  premises  at 
will  in  the  strictest  sense,  and  therefore  no  notice  is  ever  given 
him  to  quit,  and  he  is  not  even  entitled  to  reap  the  crop,  as 
other  tenants  at  will  are,  because  all  is  liable  to  the  debt ;  on 
payment  of  which  the  mortgagee's  title  ceases.  The  mortgagor 
has  no  power,  express  or  implied,  to  let  leases  not  subject  to 
every  circumstance  of  the  mortgage.  If,  by  implication,  the 
mortgagor  had  such  a  power,  it  must  go  to  a  great  extent  to 
leases  where  a  fine  is  taken  on  a  renewal  for  lives.  The  tenant 
stands  exactly  in  the  situation  of  the  mortgagor.  The  posses- 
sion of  the  mortgagor  cannot  be  considered  as  holding  out  a 
false  appearance.  It  does  not  induce  a  belief  that  there  is  no 
mortgage ;  for  it  is  the  nature  of  the  transaction  that  the 
mortgagor  shall  continue  in  possession.  Whoever  wants  to  be 
secure,  when  he  takes  a  lease,  should  inquire  after  and  examine 
the  title-deeds.  In  practice,  indeed  (especially  in  the  case  of 
great  estates),  that  is  not  often  done,  because  the  tenant  relies 

(a)   Vide  Cowp.  473. 


KEECH    V.    HALL.  825 

on  the  honour  of  his  landlord ;  but,  whenever  one  of  two  inno- 
cent persons  must  be  a  loser,  the  rule  is,  qui  jyrior  est  tempore 
potior  est  jure.  If  one  must  suffer  it  is  he  who  has  not  used 
due  diligence  in  looking  into  the  title.  It  was  said  at  the  bar, 
tiiat  if  the  plaintiff,  in  a  case  like  this,  can  recover,  he  Avill  also 
be  entitled  to  the  mesne  profits  from  the  tenants,  in  an  action 
of  trespass  (a),  which  would  be  a  manifest  hardship  and  injus- 
tice, as  the  tenant  would  then  pay  the  rent  twice.  I  give  no 
opinion  on  that  point ;  but  there  may  be  a  distinction,  for  the 
mortgagor  may  be  considered  as  receiving  the  rents  in  order  to 
pay  the  interest,  by  an  implied  authority  from  the  mortgagee, 
till  he  determine  his  will.  As  to  the  lessee's  right  to  reap  the 
crop  which  he  may  have  sown  previous  to  the  determination  of 
the  will  of  the  mortgagee,  that  point  does  not  arise  in  this  case, 
the  ejectment  being  for  a  warehouse  ;  but,  however  that  may  be, 
it  could  be  no  bar  to  the  mortgagee's  recovering  in  ejectment. 
It  would  onl}'  give  the  lessee  a  right  of  ingress  and  egress  to 
take  the  crop ;  as  to  which,  with  regard  to  tenants  at  will,  the 
text  of  Littleton  is  clear.  We  are  all  clearly  of  opinion  that 
the  plaintiff  is  entitled  to  judgment  (5). 

The  Solicitor- G-eneral  for  the  defendant. — Dimni7ig  and  Cow- 
per  for  the  plaintiff. 

The  rule  discharged. 


The  point  decided  in  tliis  case  has  been  since  frequently  confirmed.  See  Doe 
V.Giles,  5  Ring.  421 ;  Doe  v.  Maisey,  8  B.  &  C.  767 ;  Thunder  v.  Belcher,  3  East, 
449;  Smartle  v.  Williams,  3  Lev.  387;  1  Salk.  245.  ^Gibhs  v.  Cruickshank,  L. 
R.  8  C.  P.  454,  42  L.  J.  C.  P.  273;  Daws  v.  Telford,  1  App.  Cas.  414,  45  L.  J. 
Ex.  613. 

It  is,  however,  of  comparatively  small  importance  since  the  passing  of  the 
Conveyancing  Act,  1881,  which,  by  s.  18,  gives  power  to  the  mortgagor  and 
mortgagee  respectively,  if  in  possession,  to  grant  valid  leases,  subject,  however, 
to  certain  qualifications  and  restrictions.     That  section  is  as  follows  :  — 

(«)  [In  Litchfield  v.  Ready,  5  Exch.  White  v.  Hawkins,  viz.,  not  to  sulTc-r 

939,    it   was   held    that   such   action  a  lessee  under  a  lease  2'"'ior  to  the 

would  not  lie;  hut  see  Barnett  v.  Guil-  mortgage   to   avail  himself  of  such 

ford,  11  Exch.  19.]  lease  on  an  ejectment  bj'  the  mortga- 

(h)  When  the  question  was  argued  gee,  if  he  has  had  notice  before  the 

at  the  bar,  Lord  Mansfield   said   he  action  that  the  mortgagee  did  not  in- 

entirely  approved  of  what  had  been  tend  to  turn  him  out  of  possession, 

done  by  Nares,  Justice,  upon  the  Ox-  This  doctrine  is,  however,  long  since 

ford   Circuit,   and    afterwards    con-  overrulrd.     See  Roe  v.  Reade,  1  T.  R. 

firmed  by  this  court,  in  the  case  of  118;  Doe  v.  Staple,  8  T.  R.  684. 


826  KEECH    V.    HALL. 

"  18  (1).  A  mortgagor  of  land  Avhile  in  possession  shall,  as  against  every 
incumbrancer,  have,  by  virtue  of  this  Act,  power  to  make  from  time  to  time 
any  such  lease  of  the  mortgaged  land,  or  any  part  thereof,  as  is  in  this  section 
described  and  authorised. 

"  (2.)  A  mortgagee  of  land  while  in  possession  shall,  as  against  all  prior 
incumbrancers,  if  any,  and  as  against  the  mortgagor,  have,  by  virtue  of  this 
Act,  power  to  make  from  time  to  time  any  such  lease  as  aforesaid. 

"  (3.)    The  leases  which  this  section  authorises  are  :  — 
"  (i.)    An  agricultural  or  occupation  lease  for  any  term  not  exceeding 

twenty-one  years ;  and 
"  (ii.)    A  building  lease  for  any  term  not  exceeding  ninety-nine  years. 

"  (4.)  Every  person  making  a  lease  under  this  section  may  execute  and  do 
all  assurances  and  things  necessary  or  proper  in  that  behalf. 

"  (5.)  Every  such  lease  shall  be  made  to  take  efl'ect  in  possession  not  later 
than  twelve  months  after  its  date. 

"  (6.)  Every  such  lease  shall  receive  the  best  rent  that  can  reasonably  be 
obtained,  regard  being  had  to  the  circumstances  of  the  case,  but  without  any 
fine  l)eing  taken. 

"  (7.)  Every  such  lease  shall  contain  a  covenant  by  the  lessee  for  payment 
of  the  rent,  and  a  condition  of  re-entry  on  the  rent  not  being  paid  witliin  a 
time  therein  specified,  not  exceeding  thirty  days. 

"  (8.)  A  counterpart  of  every  such  lease  shall  be  executed  by  the  lessee  and 
delivered  to  the  lessor,  of  which  execution  and  delivery  the  execution  of  the 
lease  by  the  lessor  shall,  in  favour  of  the  lessee  and  all  pei'sons  deriving 
title  under  him,  be  sufficient  evidence. 

"  (9.)  Every  such  building  lease  shall  be  made  in  consideration  of  the  lessee, 
or  some  person  by  whose  direction  the  lease  is  granted,  having  erected,  or 
agreeing  to  erect  within  not  more  than  five  years  from  the  date  of  the  lease, 
buildings,  new  or  additional,  or  having  improved  or  repaired  buildings,  or  agree- 
ing to  improve  or  repair  buildings  within  that  time,  or  having  executed,  or 
agreeing  to  execute  within  tliat  time,  on  the  land  leased,  an  improvement  for 
or  in  connection  with  building  purposes. 

"  (10.)  In  any  such  building  lease  a  peppercorn  rent,  or  a  nominal  or  other 
rent  less  than  the  rent  ultimately  payable,  may  be  made  payable  for  the  first 
five  years,  or  any  less  part  of  the  term. 

"  (11.)  In  case  of  a  lease  by  the  mortgagor,  he  shall,  within  one  month 
after  making  the  lease,  deliver  to  the  mortgagee,  or,  where  there  are  more 
than  one,  to  the  mortgagee  first  in  priority,  a  counterpart  of  the  lease  duly 
executed  by  the  lessee ;  but  the  lessee  shall  not  be  concerned  to  see  that  this 
provision  is  complied  with. 

"  (12.)  A  contract  to  make  or  accept  a  lease  under  this  section  may  be 
enforced  by  or  against  every  person  on  whom  the  lease,  if  granted,  would  be 
binding. 

"  (13.)  This  section  applies  only  if  and  as  far  as  a  contrary  intention  is 
not  expressed  by  the  mortgagor  and  mortgagee  in  the  mortgage  deed,  or  other- 
wise in  writing,  and  shall  have  efl'ect  subject  to  the  terms  of  the  mortgage 
deed  or  of  any  such  writing,  and  to  the  provisions  therein  contained. 

"  (14.)  Nothing  in  this  Act  shall  prevent  the  mortgage  deed  from  reserving 
to  or  conferring  on  the  mortgagor  or  the  mortgagee,  or  both,  any  further  or 
other  powers  of  leasing  or  having  reference  to  leasing;  and  any  further  or 
other  powers  so  reserved  or  conferred  shall  be  exercisable,  as  far  as  may  be, 
as  if  they  were  conferred  by  this  Act,  and  with  all  the  like  incidents,  effects 


KEECH    V.    HALL.  827 

and  conveyances,  unless  a  contrary  intention  is  expressed  in  the  mortgage 
deed. 

"  (15.)  Nothing  in  tliis  Act  shall  be  construed  to  enable  a  mortgagor  or 
mortgagee  to  make  a  lease  for  any  longer  term  or  on  any  other  conditions 
than  such  as  could  have  been  gi-anted  or  imposed  by  the  mortgagor,  with  the 
concurrence  of  all  the  incumbrancers,  if  this  Act  had  not  been  passed. 

"  (16.)  This  section  applies  only  in  case  of  a  mortgage  made  after  the 
commencement  of  this  Act;  but  the  provisions  thereof,  or  any  of  them,  may, 
by  agreement  in  writing  made  after  the  commencement  of  this  Act,  between 
mortgagor  and  mortgagee,  be  applied  to  a  mortgage  made  before  the  com- 
mencement of  this  Act,  so,  nevertheless,  that  any  such  agreement  shall  not 
prejudicially  a^ect  any  right  or  interest  of  any  mortgagee  not  joining  in  or 
adopting  the  agreement. 

"  (17.)  The  provisions  of  this  section  referring  to  a  lease  shall  be  construed 
to  extend  and  apply,  as  far  as  circumstances  admit,  to  any  letting,  and  to  an 
agreement,  whether  in  writing  or  not,  for  leasing  or  letting." 

The  doctrine  in  Keech  v.  Hall  is,  however,  still  binding  in  all  cases  of  leases 
not  falling  within  the  provisions  of  the  Conveyancing  Act,  1881,  and  it  has 
been  thought  desirable,  notwithstanding  the  passing  of  that  Act,  to  retain  the 
note,  dealing  as  it  does  to  a  great  extent  with  the  relations  inter  se  of  the 
mortgagor  and  mortgagee,  irrespectively  of  the  rights  which  may  be  created 
by  leases  granted  to  third  persons. 

And  first,  apart  from  the  Conveyancing  Act,  1881],  when  once  it  has  been 
proved  that  the  mortgagee  has  recognised  the  tenant  of  the  mortgagor  as  his 
tenant,  he  cannot  treat  hifn  as  a  tort  feasor,  nor  if  he  elect  to  treat  him  as  a 
tort  feasor,  can  he  maintain  any  demand  against  him  in  which  he  is  charged 
as  a  tenant;  for  Birch  v.  Wright,  1  T.  R.  378,  clearly  establishes  that  a  man 
cannot  be  treated  at  once  both  as  a  tenant  and  a  trespasser. 

[The  cases  of  Doe  d.  Rogers  v.  Cadwallader,  2  B.  &  Ad.  473,  and  Doe  d. 
Whittaker  v.  Hales,  7  Bing.  322,  are  important  on  tjie  question  of  what 
amounts  to  such  a  recognition.] 

In  Doe  dem.  Rogers  v.  Cadwallader  [which  was  an  action  of  ejectment  by 
mortgagee  against  tenant  of  mortgagor],  the  wife  of  the  lessor  of  the  plain- 
tiff had  become  mortgagee  of  the  premises  in  question,  by  a  deed,  dated  the 
7th  of  May,  1828.  Interest  was  payable  on  the  25th  of  December  every 
year;  and  had  been  paid  up  to  the  25th  of  December,  1830;  the  demise  was 
on  the  1st  of  July,  1830,  and  the  defendant,  who  had  been  let  into  possession 
after  the  mortgage  by  the  mortgagor,  contended  that  the  action  was  not 
maintainable  because  it  was  not  competent  to  a  mortgagee  to  treat  the  mort- 
gagor or  his  tenants  as  trespassers,  at  any  time  during  which  their  lawful 
possession  had  l)een  recognised  by  him ;  and  that,  by  receiving  the  interest 
of  the  mortgage-money,  on  the  25th  of  December,  1830,  he  had  acknowledged 
that  up  to  that  time  the  defendant  was  in  lawful  possession  of  the  premises ; 
but  the  court  gave  judgment  for  the  plaintiff  on  the  ground  that  the  receipt 
of  interest  was  no  recognition  of  the  defendant  as  a  person  in  lawful  pos- 
session of  the  premises. 

However,  in  Doe  d.  Whittaker  v.  Hales,  Austin,  having  mortgaged  the 
premises  to  the  lessor  of  the  plaintiff,  let  them  to  the  defendant.  The  mort- 
gagee directed  his  attorney  to  apply  to  Austin  for  the  interest;  and  the 
attorney  in  April,  1830,  applied  to  the  defendant  for  rent  to  pay  the  interest, 
threatened  to  distrain  if  it  were  not  paid,  and  received  it  three  or  four  times. 
The  learned  judge  at  the  trial,  and  the  court  in  Banco  afterwards,  held  that 


328  KEECH    V.    HALL. 

these  facts  amounted  to  a  recognition  that  the  defendant  Avas  lawfully  in 
possession  in  April,  1830,  and  consecpiently  that  he  could  not  be  treated  as 
having  been  a  trespasser  on  December  25,  1829,  the  day  on  which  the  demise 
was  laid.     See  Doe  d.  Bowman  v.  Lewis,  13  M.  &  W.  241. 

Lord  Tenterden,  delivering  judgment  in  Doe  v.  Cadwallader,  took  some 
pains  to  distinguish  that  case  from  Doe  d.  Whitlaker  v.  Hales. 

Upon  the  wdiole  the  question  whether  the  mortgagee  have  I'ecognised  the 
tenant  of  the  mortgagor  as  his  tenant  appears  to  be  a  question  more  of  fad 
than  of  law,  and  probably  would  be  left  to  the  consideration  of  the  jury, 
providing  there  were  any  evidence  fit  to  be  submitted  to  them.  And  the 
decision  in  Doe  v.  Cadwallader  seems  to  establish  that  mere  receipt  of  inter- 
est by  the  mortgagee,  coupled  with  no  other  fact  wdiatever,  would  not  l)e 
evidence  fit  to  be  left  to  the  jury  on  the  question  of  recognition.  The  ruling 
in  Doe  v.  Cadwallader,  it  must,  however,  be  observed,  seems  to  have  been 
thought  too  severe  by  Lord  Denraan  in  Evans  v.  Elliot,  9  A.  &  E.  342.  It 
seems,  however,  from  a  prior  part  of  his  lordship's  judgment,  that  the  three 
other  judges  Avere  disposed  to  adhere  to  the  opinion  expressed  in  Doe  v. 
Cadwallader. 

[Next,  there  is  a  class  of  cases  in  which  it  has  been  held  that  the  mort- 
gage, though  not  specifically  creating  a  tenancy,  operated  as  a  redemise  to 
the  mortgagor,  thus  giving  the  latter  a  fresh  power  to  demise,  irrespectively 
of  the  provisions  of  the  Conveyancing  Act,  1881.  Thus  it]  often  happens 
that  there  is  an  express  covenant  in  a  mortgage  deed,  that  the  mortgagor 
shall  remain  in  possession  of  the  premises  until  default  in  payment  of  the 
mortgage-money  at  a  certain  period.  Up  to  that  jferiod  he  seems  to  hohl  an 
interest  in  the  nature  of  a  term  of  years ;  and,  of  course,  during  that  period 
he  has  a  right  to  the  possession,  and  could  not  be  legally  ejected  ;  Wilkinson 
V.  Hall,  3  Bing.  N.  C.  508  ;  the  stipulation  that  he  should  remain  in  possession 
operating  as  a  redemise.  When  that  fixed  period  has  expired,  he  becomes, 
if  the  money  have  not  been  paid,  tenant  at  sufferance  to  the  mortgagee.  "  We 
must  look,"  said  Best,  C.  J.,  delivering  judgment  In  such  a  case,  "at  the 
covenant  he  has  made  with  the  mortgagee,  to  ascertain  what  his  real  situ- 
ation is.  We  find,  from  the  deed  between  the  parties,  that  possession  of  his 
estate  is  secured  to  him  until  a  certain  day,  and  that,  if  he  does  not  redeem 
his  pledge  by  that  day,  the  mortgagee  has  a  right  to  enter  and  take  posses- 
sion. From  that  day  the  possession  belongs  to  the  mortgagee ;  and  there  is 
no  more  occasion  for  his  requiring  that  the  estate  should  be  delivered  up  to 
him  before  he  brings  an  ejectment,  than  for  a  lessor  to  demand  possession 
on  the  determination  of  a  term.  The  situation  of  a  lessee  on  the  expiration 
of  a  term,  and  a  mortgagor  who  has  covenanted  that  the  mortgagee  may 
enter  on  a  certain  day,  is  precisely  the  same."     5  Bing.  427. 

And,  attending  to  the  distinction  between  an  agreement  to  be  collected 
from  the  mortgage  deed  that  the  mortgagor  shall  remain  in  possession  for  a 
time  certain,  Avhich  operates  as  a  redemise,  and  an  agreement  that  the  mort- 
gagee may  enter  upon,  or  the  mortgagor  hold  until,  a  default,  the  time  of 
which  is  uncertain,  which  agreement  cannot  operate  as  a  redemise  for  viant 
of  certaintu  (Com.  Dig.  Estate,  G.  12),  the  view  taken  in  Wilkinson  v.  Hall 
seems  not  to  be  at  A'ariance  Avith  the  more  recent  decisions  in  Doe  d.  Pioii- 
lance  v.  Lightfoot,  8  M.  &  W.  5G4,  and  Doe  d.  Parsley  v.  Day,  2  Q.  B.  147, 
though  extended  too  widely  in  Doe  d.  Lister  \.  Goldioin,  2  Q.  B.  143. 

As  for  Wheeler  v.  Montefiore,  2  Q.  B.  133,  explained  by  the  court  in  Doe  d. 
Parsley  v.  Day,  2  Q.  B.  \'n),  it  has  no  bearing  upon  the  question;  because  the 


KEECH    V.    HALL.  829 

mortgage,  in  that  case,  was  for  a  term  of  _years,  the  mortgagee  liad  never 
eiiteretl,  and  tlic  action  was  of  trespass:  wliicli  form  of  action  cannot  be 
maintained  by  a  lessee  for  years  befoi'e  entry;  altliougli  lie  may  bring  an 
ejectment,  because  in  that  proceeding  the  riyht  to  the  possession  only  is  in 
question.     [See  Harrison  v.  Blackhurn,  34  L.  J.  C.  V.  lOD. 

In  Turner  v.  Cameron's  Coalhrook  Steam  Coal  Co.,  ~>  Exch.  932,  20  L.  J. 
Exch.  71,  the  mortgage  does  not  appear  to  have  been  for  years  or  a  less  es- 
tate, and  the  court  was  of  opinion  that  the  mortgagee  could  not  maintain 
ti'espass  before  entry,  because  he  had  not  entered;  and  see  per  Parke,  B., 
Litchfield  v.  Beady,  5  Ex.  919,  945;  Com.  Dig.  Trespass,  B.  3.  In  Litchfield 
V.  Ready  it  was  held  that  he  could  not  after  entry  maintain  trespass  for 
mesne  profits  before  entry,  against  the  mortgagor's  tenant  after  mortgage. 
It  is  to  be  observed,  however,  that  Parke,  B.,  in  giving  judgment  in  the  case 
of  Litchfield  v.  Ready,  proceeds  upon  the  ground  that  the  doctrine  of  rela- 
tion back  of  possession  to  title  is  confined  entirely  to  the  case  of  disseisor 
and  disseisee,  a  view  which  the  same  learned  judge  modified  in  the  later  case 
of  Burnett  v.  Guilford,  12  Ex.  19,  where  the  docti'ine  was  applied  in  the  case 
of  entrj'  bj"^  the  lieir  on  an  abator.  In  the  case  of  Anderson  v.  Ratcliffe,  E.  B. 
&  E.  80G-819,  the  doctrine  was  applied,  in  the  case  of  entry,  bj'  the  assignee 
of  a  term.  But  in  the  judgment  of  the  Court  of  Exchequer  Chamber  the 
case  of  mortgagor  and  mortgagee  Avould  seem  to  be  put  upon  a  distinct  and 
special  footing.     See  S.  C.  29  L.  J.  Q.  B.  128.] 

In  Doe  d.  Lyster  v.  Goldwin,  2  Q.  B.  143,  a  conveyance  was  made  of  the 
legal  estate,  by  Lj'ster  and  his  wife,  (in  whose  right  he  enjoyed  the  property,) 
in  order  "  to  secure  an  annuity  upon  which  money  had  been  advanced  by  the 
Globe  Insurance  Oftice ;  "  and  it  was  in  trust,  amongst  other  things,  to  permit 
and  suffer  Mrs.  Lyster  to  receive  the  rents  until  default  made  for  sixty  days 
in  payment  of  the  annuity ;  and,  no  default  appearing,  it  was  held  that  the 
legal  estate  remained  by  way  of  redemise  in  Lyster.  But,  to  cite  the  obser- 
vation of  the  court  in  a  subsequent  judgment,  {Doe  d.  Parsley  v.  Day,  2  Q.  B. 
155,)  "it  may  be  questionable  whether  sufficient  attention  was  paid  in  that 
case  to  the  point  as  to  the  cA-tainty  of  the  time  :  at  all  events  it  was  not  decided 
upon  any  ground  that  such  certainty  was  immaterial."  And  it  may  be  fnrtlier 
observed,  upon  Doe  d.  Lyster  v.  Goldvnn,  that  the  nature  of  the  transaction 
does  not  appear  very  distinctly,  and  the  conveyance  seems  not  unlikely  to 
have  been  simply  a  demise  or  assignment  of  a  term  to  secure  the  annuity, 
and  so  to  have  admitted  of  considerations  different  from  those  whicli  govern 
the  case  of  an  ordinary  mortgage.'  (See  Jacob  v.  Milford,  1  J.  &  W.  G29 ; 
Doe  d.  Butler  v.  Lord  Kensington,  8  Q.  B.  429.) 

In  Doe  d.  Roylance  v.  Lightfoot,  8  M.  &  W.  553,  the  proviso  was,  that  if  the 
mortgagor  should  well  and  truly  pay  the  principal  money  and  interest  on  the 
25th  of  March  then  next,  the  mortgagee  should  reconvey,  and  there  were 
covenants  that  after  default  the  mortgagee  might  enter,  and  also  after  default 
for  further  assurance.  The  Court  of  Exchequer,  referring  to  the  passage  in 
Shepherd's  Touchstone  presently  to  be  stated  in  full,  and  observing  that  it 
was  not  brought  to  the  attention  of  the  court  in  Wilkinson  v.  Hall,  held  that 
the  estate  was  in  the  mortgagee  from  the  time  of  the  execution  of  the  mortgage, 
and  that  the  statute  of  limitations  began  to  run  at  that  time. 

In  Doe  d.  Parsley  v.  Day,  2  Q.  B.  147,  freeholds  and  leaseholds  were  con- 
veyed in  mortgage  with  a  proviso  that  upon  payment  of  550Z.  and  interest  on 
the  5th  of  October  then  next  the  conveyance  should  be  void,  but  in  case  of 
non-payment  it  was  to  be  lawful  for  the  mortgagee,  after  a  month's  notice  in 


830  KEECH    \.    HALL. 

writing  demanding  payment,  to  enter  into  possession,  and  to  mal<c  leases  and 
sell,  and  there  was  a  covenant  by  the  mortgagee  not  to  sell  or  lease  nntil  after 
snch  notice.  The  Court  of  Queen's  Bench,  following  the  authority  of  the 
passage  in  the  Touchstone,  referred,  to  by  Tarke,  B.,  in  Doe  d.  lioijluiice  v. 
LUjldfoot,  and  acceding  to  the  doctrine  of  that  case,  came  to  the  conclusion 
that,  inasmuch  as  after  the  day  of  payment,  the  time,  if  any,  during  Aviiich 
the  mortgagor  was  to  hold  was  not  determinate,  but  altogether  uncertain ; 
neither  was  there  any  affirmative  covenant  whatever  that  he  should  hold  at 
all:  "the  covenant,  therefore,  that  the  mortgagee  shall  not  sell  or  lease,  or 
even  if  it  be  construed  should  not  enter,  until  a  month's  notice,  was  a  cove- 
nant only  and  no  lease." 

The  passage  in  Shep.  Touch.  (8th  ed.)  272,  referred  to  in  Doe  d.  Roijlance  v. 
Liijhtfoot,  was  cited  at  length,  and  commented  upon  in  the  judgment  in  Doe  d. 
Parsley  v.  Day,  as  follows :  —  "  If  A.  do  but  grant  and  covenant  with  B.,  that 
B.  should  enjoy  snch  a  piece  of  land  for  twenty  years ;  this  is  a  good  lease 
for  twenty  years.  So,  if  A.  promise  to  B.  to  sutler  him  to  enjoy  such  a  piece 
of  land  for  twenty  yea^s ;  this  is  a  good  lease  for  twenty  years.  So,  if  A. 
licence  B.  to  enjoy  such  a  piece  of  land  for  twenty  years ;  this  is  a  good  lease 
for  twenty  years.  And  therefore  it  is  the  common  course,  if  a  man  make  a 
feoflment  in  fee,  or  other  estate  upon  condition,  that  if  such  a  thing  be  or  be 
not  done  at  such  a  time,  that  the  feoffor,  &c.,  shall  re-enter,  to  the  end,  that 
in  this  case  the  feoffor,  &c.,  may  have  the  land,  and  continue  in  possession 
until  that  time,  to  make  a  covenant  that  he  shall  hold,  and  take  the  profits 
of  the  land  until  that  time ;  and  this  covenant  in  this  case  will  make  a  good 
lease  for  that  time,  if  the  uncertainty  of  the  time,  whereunto  care  must  be  had, 
do  not  make  it  void.  (Mr.  Preston  adds,  '  The  limitation  of  a  certain  term, 
with  a  collateral  determination  on  the  event,  would  meet  the  difficulties  of 
the  case.')  And,  therefore,  if  A.  bai-gain  and  sell  his  land  to  B.  on  condition 
to  re-enter  if  he  pay  him  lOOL,  and  B.  doth  covenant  with  A.  that  he  will  not 
take  the  profits  until  default  of  payment;  or  that  A.  shall  take  the  proHts 
until  default  of  payment;  in  this  case,  howbeit  this  may  be  a  good  covenant, 
yet  it  is  no  good  lease  ('  for  want,'  says  Mr.  Preston,  '  of  a  more  formal  con- 
tract, and  also  for  want  of  certainty  of  time ').  And  if  the  mortgagee  cove- 
nant with  the  mortgagor,  that  he  will  not  take  the  profits  of  the  land  until 
the  day  of  payment  of  the  money;  in  this  case,  albeit  the  time  be  certain,  j'et 
this  is  no  good  lease,  but  a  covenant  only  ('  since,'  says  Mr.  Preston,  '  the 
words  are  negative  only,  and  not  affirmative').  Precisely  the  same  law  is 
laid  down  in  Powseley  \.  Blackman,  Cro.  Jac.  659;  Evans  v.  Thomas,  Cro. 
Jac.  172;  Jemmot  v.  Coaly,  1  Lev.  170;  S.  C.  1  Saund.  112,  b.,  1  Sid.  223, 
262,  344;  Sir  T.  Raymond,  135,  158;  Keb.  784,  915;  2  Keb.  20,  184,  270,  295." 

It  may  perhaps  be  concluded,  on  this  review  of  the  authorities,  that  in 
order  to  make  a  Redemise,  there  must  be  an  affirmative  covenant,  that  the 
mortgagor  shall  hold  for  a  determinate  time ;  and  that  where  either  of  those 
elements  is  wanting,  there  is  no  redemise. 

A  mortgage  deed  sometimes  contains  [a  specific]  agreement  that  the  mort- 
gagor shall  be  tenant  to  the  mortgagee  at  a  rent ;  or  a  power  enabling  the 
mortgagee  to  distrain,  by  which  no  tenancy  is  created.  The  object  of  such 
provisions  is  generally  to  further  secure  the  payment  of  the  interest  [and  if 
so  provided  the  principal.  Ex  parte  Harnson,  18  Ch.  D.  127],  an  object  more 
completely  effected  by  adopting  the  former  than  the  latter  mode  of  framing 
the  deed;  because,  whilst  the  former  makes  the  mortgagor  tenant  to  the 
mortgagee  and  creates  a  rent  properly  so  called,  with  all  its  incident  remedies 


KEECH    V.    HALL.  831 

[Anderson  v.  Midland  Bail.  Co.,  30  L.  J.  Q.  B.  94;  see  Jolly  v.  Arbuthnot,  4 
De  G.  &  J.  224 ;  Morton  v.  Woods,  L.  R.  4  Q.  B.  21)3,  38  L.  J.  Q.  B.  81 ;  Dauhxiz 
V.  Lavington,  13  Q.  B.  D.  347;  In  re  Threlfall,  Ex  parte  Queen's  Benefit  So- 
ciety, 16  Ch.  D.  274,  50  L.  J.  Ch.  318,  sub  nom.  Ex  parte  Blake y ;  Ex  parte 
Voisey,  21  Ch.  D.  442;  Kearsley  v.  Philips,  11  Q.  B.  D.  621,  where  Brett, 
M.  R.,  quotes  the  above  passage  in  extenso  \y\th  approval;  52  L.  J.  Q.  B. 
581],  the  latter  mode  operates  merely  by  way  of  personal  licence  from  the 
mortgagor,  and  aflects  his  interest  only.  The  former  mode,  however,  is  open 
to  the  objection  that  the  tenancy  created  [unless  apt  words  to  tlie  contrary 
are  used  in  the  instrument,  see  In  re  Threlfall,  Ex  parte  Queen's  Benefit  So- 
ciety, supra'l  is  at  will,  and  consequent!}'  the  rent  precarious ;  and  to  tlie  more 
practical  one,  that  tlie  deed  containing  it  may  possibly  be  held  to  require  a 
lease  stamp.     See  18  Jurist,  part  2,  p.  150. 

The  eftcct  of  either  mode  of  framing  the  deed  upon  the  [original]  subject 
of  tliis  note,  viz.,  the  right  of  the  mortgagee  to  bring  ejectment,  must,  in  each 
case,  depend  upon  the  terms  in  Avhich  it  is  framed.  [Further,  the  terms  of 
tlie  deed  of  mortgage  are  important  in  considering  a  series  of  cases  noted 
later  on,  in  which  the  question  has  been  discussed  whether  instruments  of 
mortgage  purporting  to  create  the  relation  of  landlord  and  tenant  between 
mortgagee  and  mortgagor  have  really  had  that  effect  so  as  to  give  the  mort- 
gagee the  rights  of  a  landlord  as  against  other  creditors  of  the  mortgagor  on 
the  bankruptcy  of  the  latter.] 

In  Doe  d.  Garrod  v.  Olley,  12  A.  &  E.  481,  it  was  agreed  that  tlie  mortgagor, 
during  his  occupation  of  the  premises,  should  pay  the  mortgagee  a  rent  of 
50Z.  a  year,  Avith  such  power  of  distress  as  landlords  have  on  common 
demises,  pi'ovided  that  the  reservation  of  rent  should  not  prejudice  the  mort- 
gagee's right  to  enter  after  default  in  payment  of  the  moneys  secured  or  any 
part  thereof.  The  mortgagee,  after  the  principal  had  fallen  due,  distrained 
for  half  a  year's  i-ent,  and  upon  a  subsequent  default  in  payment  of  rent,  the 
principal  still  remaining  due,  he,  without  anj'  notice  to  quit,  brought  an  eject- 
ment, and  succeeded.  Patteson,  J.,  in  that  case,  expressed  his  opinion  that 
it  could  not  be  meant  tliat  the  50/.  should  be  a  rent-charge,  because  the  mort- 
gagor had  no  estate  in  him,  and  that  it  seemed  "as  if  the  relation  of  landlord 
and  tenant  was  contemplated,  but  with  liberty  for  the  landlord  to  treat  the 
tenant  as  a  trespasser  at  any  time  after  any  default."  That  decision  was 
confli*med  and  acted  on  in  Doe  d.  Snell  v.  Tom,  4  Q.  B.  GI5. 

In  Doe  d.  Basto  v.  Cox,  11  Q.  B.  122,  the  mortgagor  agreed  to  become 
tenant  "  henceforth  at  the  will  and  pleasure  of  the  mortgagee,  at  the  yearly 
rental  of  251.  4s.  payable  quarterly,"  which  agreement  was  held  to  create 
a  tenancy  at  will,  not  converted  into  a  tenancy  from  year  to  year  by  occupa- 
tion for  two  years  and  payment  of  rent. 

[In  The  Metropolitan  Counties,  &c.,  Society  v.  Brovui,  4  H.  &  N.  428,  powers 
of  sale  aud  entry  after  default  on  a  certain  day  were  given  by  the  mortgage 
deed,  which  provided  that  "  to  the  intent  that  the  mortgagees  might  have  for 
the  recovery  of  interest  on  the  principal  money  the  same  powers  of  entry  and 
distress  as  are  given  to  landlords  for  the  recover}^  of  rent  in  arrear,"  the 
mortgagor  "  did  thereby  attorn  and  become  tenant  from  year  to  year  of  the 
premises  to  the  mortgagors  at  a  yearly  rent  payable  half-yearly.  NcAerthe- 
less,  in  the  event  of  any  sale  under  the  powers  thereinbefore  contained,"  the 
attornment  and  tenancy  thereby  created  was,  "as  regards  such  portion  of 
the  premises  as  should  be  sold  to  be  at  an  end ;  and  that  vnthout  any  previous 
notice  to  put  an  end  to  the  same."     This  mortgage  having  been  assigned,  the 


832 


KEECH    V.    HALL. 


assignees  after  default  in  payment  on  tlie  day  named,  without  giving  the 
mortgagor  six  moutlis'  notice  to  quit,  served  liim  with  a  notice  of  entry,  and 
on  liis  refusal  to  give  up  possession  brought  an  ejectment  against  him,  wliich 
action  was  held  maintainable.  "The  clause  of  attornment,"  said  Pollock, 
C.  B,  "did  not  create  a  tenancy  from  year  to  year  vith  all  Us  incidents,  and 
looking  at  the  deed  in  its  entirety,  the  true  construction  is  that  the  right 
of  entry  overrides  the  other  provision,  and  therefore,  notwithstanding  tlie 
tenancy  thereby  created,  the  mortgagee  may  re-enter  on  default  of  payment 
of  the  interest."  The  majority  of  the  court  seem  to  have  been  of  opinion 
that  such  form  of  mortgage  creates  a  tenancy  from  year  to  year,  determin- 
able on  the  part  of  tlie  mortgagees  without  notice  to  quit. 

Wliere  a  mortgage  deed,  which  was  never  executed  by  the  mortgagees, 
contained  an  attornment  by  the  mortgagor  for  tlie  term  of  ten  years,  with  a 
proviso  that  the  landlord  (the  mortgagee)  might  enter  and  determine  the 
term  at  his  will,  it  was  urged,  on  the  authority  of  Brooke's  Abridgement,  tit. 
Lease  13,  that  the  proviso  must  be  rejected  as  repugnant,  and  there  being  no 
deed  executed  that  the  term  for  ten  years  would  be  void.  But  the  court  held 
that  though  this  might  be  so  in  the  ordinary  case  of  a  lease,  yet,  looking  to 
the  whole  object  and  scope  of  the  deed  in  question,  a  tenancy  was  thereby 
created  so  as  to  support  a  distress  by  the  mortgagee.  Morton  v.  Woods,  L.  R. 
4  Q.  B.  293;  38  L.  J.  Q.  B.  81.  As  to  the  exact  nature  of  the  tenancy,  see 
per  Lush,  L.  J.,  in  Ex  parte  Punnett,  16  Ch.  D.  226,  50  L.  J.  Ch.  212,  where 
this  case  was  expi-essly  followed  by  the  C.  A. 

Similarly  in  In  re  Threlfall,  16  Ch.  D.  274;  50  L.  J.  Ch.  318,  where  the 
mortgage  deed  contained  an  attornment  clause  whereby  the  mortgagors  "  did 
attorn  and  become  tenants  from  year  to  year  to"  the  mortgagees,  with  a 
proviso  that  the  mortgagees  might  at  any  time  after  a  certain  date,  Avithout 
notice,  take  possession  of  the  mortgaged  premises,  it  was  held  by  the  C.  A. 
that  there  was  no  repugnancy  between  these  two  clauses,  and  that  a  tenancy 
from  year  to  year  in  the  mortgagors  was  created  which  supported  a  distress 
by  the  mortgagees.  See  also  Ex  parte  Voisey,  21  Ch.  I).  442;  52  L.  J. 
Ch.  121. 

AVhere  a  mortgage  deed  provided  that  the  mortgagor  in  the  event  of  his 
making  default  should  "immediately  or  at  any  time  after  such  default"  hold 
the  mortgaged  premises  as  j^early  tenant  to  the  mortgagees  from  the  date  of 
the  deed,  at  a  specified  rent,  it  was  held  that  the  mortgagor  did  not,  after 
default,  become  tenant  so  as  to  give  the  mortgagees  a  right  of  distress,  until 
after  some  communication  by  them  to  him  of  the  change  tliey  had  resolved 
to  make  in  the  terms  upon  which  his  possession  was  suftered  to  continue. 
Cloioes  v.  Hughes,  L.  R.  5  Ex.  160;  39  L.  J.  Ex.  62.] 

In  [these]  cases,  the  relation  of  landlord  and  tenant  appears  to  have  at 
first  existed ;  but  there  have  been  others  of  a  like  character,  in  which  a  mere 
personal  licence  to  distrain,  or  a  rent-charge  (afterwards  merged  1iy  the 
acquisition  of  the  legal  estate) ,  has  been  given  to  the  mortgagee.  Thus  in 
Doe  d.  Wilkinson  v.  Goodicr,  10  Q.  B.  957,  there  was  a  power  in  the  mortgagee 
to  distrain  for  interest  if  in  arrear  twenty-one  days,  "  in  like  manner  as  for 
rent  reserved  on  a  lease ;  "  and  though  the  moi'tgagee  had  entered  and  dis- 
trained after  the  day  of  the  demise  in  ejectment,  but  for  interest  due  before 
that  day,  he  was  considered  not  to  have  recognised  the  mortgagor  as  his 
tenant,  and  to  be  entitled  to  maintain  ejectment. 

In  Freeman  v.  Edwards,  2  Exch.  732,  the  mortgage,  which  was  of  copyhold, 
contained  a  similar  power  to  distrain  for  interest;    the  mortgagee  was  ad- 


KEECH    V.    HALL.  833 

mitted  to  the  copyholds;  the  mortgagor  became  bankrupt,  and  Avhilst  lie  still 
remained  in  possession,  the  mortgagee  distrained  for  interest  in  arrear;  for 
which  act  the  assignees  of  the  mortgagor  sued  in  trespass.  The  mortgagee 
pleaded  a  justification  under  the  deed,  which  plea  was  held  bad  after  verdict. 
The  ai'guments  advanced  on  either  side,  and  the  view  taken  by  the  court  of 
the  operation  of  such  poAver,  appear  fully  in  the  following  passage  from  the 
judgment  of  Parke,  B.  :  [as  reported  in  17  L.  J.  Ex.  201]  —  "The  utmost 
effect  that  can  be  given  to  this  deed,  is  to  consider  it  as  operating  as  a  cove- 
nant that  the  mortgagee  may  seize  such  goods  of  the  mortgagor  as  shall  be 
on  the  promises  at  the  time  the  distress  is  made,  and  treat  them  as  if  dis- 
trained ;  such  a  covenant  would  not  affect  any  specific  goods  before  seizure, 
and  therefore  the  goods  came  to  the  assignees  not  subject  to  any  equit}^ 
Probably,  the  argument  that  the  grant  operated  so  as  to  create  a  rent-charge 
is  correct ;  and  if  so,  the  rent-charge  continued  until  the  surrender  and  ad- 
mittance. But  it  is  not  necessary  to  decide  that,  for  as  soon  as  the  grantee 
of  the  rent^charge,  if  it  was  one,  became  entitled  to  the  fee  simple  in 
possession,  the  rent-charge  Avas  gone,  and  the  covenant  ceased  to  exist  as  an 
obligation  binding  the  land.  It  might,  however,  still  exist  as  a  personal 
covenant,  binding  the  covenantor,  though  it  would  not  affect  third  persons. 
The  argument  of  the  plaintiff's  counsel,  that  the  effect  of  the  deed  Avas 
exhausted  by  the  creation  of  the  rent,  may  make  this  doubtful ;  and  it  is  not 
necessary  to  decide  it,  for,  giving  the  covenant  this  effect,  it  Avill  not  make 
this  a  good  plea.  The  covenant  at  most  is  to  be  construed  as  an  agreement 
that  all  goods  l)elonging  to  Leedham  (the  mortgagor)  at  the  time  of  the  dis- 
tress, and  then  upon  the  land,  might  be  seized.  This  Avould  affect  his  OAvn 
goods  AA-hen  seized.  Up  to  the  seizure  the  whole  is  contingent,  and  gives  no 
lien  on  specific  goods.  Before  the  distress  Avas  made,  Leedham  became  bank- 
rupt ;  at  that  time  the  Avhole  of  the  goods  AA-hich  Avere  his  property,  and  then 
upon  the  land,  Avere  contingently  liable  to  be  seized,  but  no  specific  portion 
Avas  liable  more  than  the  rest.  There  Avas,  therefore,  no  lien  on  any  portion 
of  the  goods,  according  to  the  principle  of  the  decision  in  Carvdhn  \.  Burn, 
4  B.  &  Ad.  382  (1  A.  &  E.  883).  Then  at  the  moment  of  the  distress  the 
goods  had  ceased  to  belong  to  Leedham,  and  became  the  property  of  the 
assignees,  and,  as  goods  not  belonging  to  the  covenantor,  Avere  not  subject 
to  the  coA-enant."     See  also  Chapman  \.  Beecher,  3  Q.  B.  723. 

[A  personal  licence  to  distrain  should  seem  not  to  be  transferable,  and  the 
assignee  of  the  mortgage  could  not  justify  a  seizure  under  it  as  a  servant  of 
the  mortgagee.  (See  Broion  v.  The  Metropolitan,  &c.,  Society,  1  El.  &  El.  832, 
28  L.  J.  Q.  B.  23G.) 

In  certain  cases  the  courts  have  held,  on  various  grounds,  that  the  mort- 
gage deed,  though  purporting  to  create  a  tenancy  in  the  mortgagor,  had  not 
that  effect.  Thus]  in  Walki^r  v.  Giles,  6  C.  B.  GG2,  Avhere  a  conveyance  to  the 
trustees  of  a  building  society,  to  secure  payment  of  subscriptions,  contained 
a  clause  Avhereby  the  mortgagor  agreed  to  become  tenant  to  the  trustees  of 
the  premises,  thenceforth  "  during  their  will,  at  the  net  yearly  rent  of  200Z., 
payable  on  the  usual  quarter  days;  the  Court  of  Common  Pleas  held  that 
there  Avas  no  tenancy,  the  general  scope  of  the  deed  being  inconsistent  Avith 
such  a  construction,  since,  if  there  Avas  a  tenancy,  the  mortgag[or]  might  be 
called  upon  to  pay  both  the  subscriptions  and  the  rent.  This  case  seems, 
however,  open  to  the  animadversion  AA'hich  it  has  called  forth  in  the  13  .Jurist, 
part  2,  p.  4fi3,  and  17  Jurist,  part  2.  p.  149;  and  the  court  appears  to  have 
disregarded  the  express  intention  of  the  parties,  in  order  to  avoid  the  fancied 


334  KEECH    V.    HALL. 

injustice  of  the  trustees  having  the  power  (subject  to  the  control  of  a  court 
of  equity)  to  recover  their  debt  twice  over,  in  other  words,  to  treat  tlie  rent 
as  a  security  for  payment  of  the  subscriptions.  And  in  the  more  recent  case 
of  Pinhorn  v.  Souster,  8  Exch.  763,  where  the  deed  more  fully,  though 
scarcely  more  clearly,  than  in  Walker  v.  Giles,  expressed  the  intention  that  a 
tenancy  at  will  should  be  created,  and  stipulated  that  tlie  mortgagee  should 
apply  the  rent  in  satisfaction  of  the  rent  due  from  the  mortgagor  to  his 
superior  landlord,  and  in  satisfaction  of  the  principal  and  interest,  and  pay 
the  surplus,  if  any,  to  the  mortgagor,  the  Court  of  Exchequer  [distinguish- 
ing Walker  v.  Ones']  held  that  a  tenancy  at  will  was  ci'eated,  in  respect  of 
which  the  mortgagee  might  distrain  ;  and  further,  that  such  tenancy  was  not 
put  an  end  to  by  assignment  of  the  mortgagor's  interest  witliout  notice  to 
the  mortgagee.  [In  Brown  v.  The  Metropolitan,  &c.,  Suciettj,  28  L.  J.  Q.  B. 
230 ;  1  El.  &  El.  832 ;  the  court  expressed  an  opinion  that  Walker  v.  Giles 
could  only  be  supported,  if  at  all,  on  the  ground,  pointed  out  by  Lord  Wens- 
leydale  in  Pinhorn  v.  Souster,  that  the  tenancy  and  power  of  distress  were 
inconsistent  with  the  other  provisions  of  the  deed.  See  also  Turner  v. 
Barnes,  2  B.  &  S.  435;  31  L.  J.  Q.  B.  170.  Ex  parte  Harrison,  18  Ch. 
D.   127. 

Again,  there  have  been  cases  in  which  the  courts  have  lield  tliat  no  tenancy 
Avas  created  so  as  to  support  a  disti'ess,  when  it  appeared,  from  the  terms  of 
the  mortgage,  that  it  was  never  the  intention  of  the  parties  to  create  a  real 
tenancy,  but  that  the  attornment  clause  was  a  mere  device  to  defeat  the 
bankruptcy  law  by  giving  the  mortgagee  a  preference  over  the  mortgagor's 
other  creditors. 

This  Avas  held  to  be  the  case  where  the  rent  nominally  reserved  was  ex- 
travagantly high  as  compared  with  the  real  value  of  the  mortgaged  premises, 
Ex  parte  Williams,  7  Ch.  D.  138  ;  Ex  parte  Jackson,  14  Ch.  D.  725,  distinguished 
in  Ex  parte  Voisey,  21  Ch.  D.  442;  52  L.  J.  Ch.  121,  where  the  subject  is  fully 
discussed  by  the  C.  A.  See  also  In  re  Stockton  Iron  Eurnace  Co.,  10  Ch. 
D.  335. 

By  the  Bills  of  Sale  Act  1878  (41  &  42  Vict.  c.  31),  s.  G,  it  is  provided  that 
"  every  attornment,  instrument,  or  agreement,  not  being  a  mining  lease, 
whereby  a  power  of  distress  is  given,  or  agreed  to  be  given,  by  any  person 
to  any  other  person  by  way  of  security  for  any  present,  future,  or  contingent 
debt  or  advance,  and  whereby  any  rent  is  reserved  or  made  payable  as  a  mode 
of  providing  for  the  payment  of  interest  on  such  debt  or  advance,  or  other- 
wise for  the  purpose  of  such  security  only,  shall  be  deemed  to  be  a  bill  of 
sale,  within  the  meaning  of  this  Act,  of  any  personal  chattels  which  may  be 
seized  or  taken  under  such  power  of  distress. 

"  Provided  that  nothing  in  this  section  shall  extend  to  any  mortgage  of  any 
estate  or  interest  in  any  land,  tenement,  or  hereditament  which  the  mortgagee, 
being  in  possession,  shall  have  demised  to  tlie  mortgagor  as  his  tenant  at  a 
fair  and  reasonable  rent." 

The  above  provision,  coupled  with  the  additional  stringency  of  the  Bills  of 
Sale  Amendment  Act,  1882  (45  &  4(5  Vict.  c.  43),  as  to  bills  of  sale  in  general, 
may  probably  render  such  clauses  of  less  frequent  occurrence  in  mortgages 
in  the  future.  However,  in  the  case  of  Hall  v.  Comfort,  18  Q.  B.  D.  11,  it 
was  held  that  a  mortgage  deed,  containing  an  attornment  clause,  was  not 
rendered  void  by  the  Bills  of  Sale  Acts  quoad  the  demise,  and,  therefore, 
following  Dauhuz  v.  Lavimiton,  13  Q.  B.  D.  847,  that  the  mortgagee  might 
indorse  his  writ  under  Order  III.  rule  6,  and  recover  possession  under  Order 


KEECH    V.    HALL.  835 

XIV.,  as  "  ao:ainst  a  tenant  whose  term  had  expired  or  had  been  duly  deter- 
mined by  notice  to  quit." 

In  Hampson  v.  FeUoirs,  L.  R.  0  Eq.  575,  the  mortgagor  assigned  the  lease 
for  tw'nty-onc  years  of  a  house  in  which  he  resided,  together  Avith  two 
policies  of  assurance  on  his  life,  to  secure  the  repayment  of  250?.  and  inter- 
est, and  the  premiums  on  the  policies.  By  the  deed  the  mortgagor  attorned 
tenant  to  the  mortgagee  at  the  yearly  rent  of  175/.,  with  a  proviso  for  the 
determination  of  the  tenancy  at  the  Avill  of  the  mortgagee.  IMalins,  V.-C., 
restrained  by  injunction  a  distress  under  this  clause  for  the  principal,  hold- 
ing, however,  that  the  mortgagee  would  have  been  justified  in  distraining 
under  it  for  any  "  outgoings  under  the  deed,"  tliat  is  to  say,  intei'est  on  the 
advance,  premiums  on  the  policies,  and  the  landlord's  rent  of  the  house;  the 
ground  on  Avhich  the  Vice-Chancellor  came  to  the  conclusion  that  such  was 
the  intention  of  the  clause,  having  apparently  been,  that  the  I75Z.  was,  in 
round  numbers,  the  aggregate  amount  of  those  outgoings. 

Tliis  case,  however,  was  not  followed  in  Ex  parte  Harrison,  IS  Ch.  D.  127. 
The  attornment  clause  there  provided  for  a  yearly  rent  of  593/;.  15s.,  which 
was  equal  to  the  annual  interest  at  4|  per  cent,  primarily  covenanted  for, 
though  sucli  interest  was  reducible  to  the  rate  of  3|  per  cent,  on  punctual 
payment.  In  the  Court  of  Appeal,  notwithstanding  those  circumstances,  it 
was  held  that  the  fruits  of  a  distress  under  the  clause  Avere  properly  applica- 
ble to  principal  as  Avell  as  interest. 

Another  mode  of  securing  the  mortgagor's  possession  of  the  mortgaged 
premises  is  to  make  him  tenant  of  them  to  a  third  person  appointed  by  him 
and  the  mortgagee  to  receive  the  rents  of  the  premises.  This  Avas  done  in 
Jolly  V.  Arhuthnot,  4  De  G.  &  J.  224.  In  that  case,  b}'  a  deed,  executed  at  the 
same  time  as  the  mortgage,  and  made  betAveen  the  mortgagor,  mortgagee, 
and  Aplin,  after  reciting  that  it  AA'as  agreed  that,  for  the  purpose  of  securing 
payment  of  the  interest,  and  providing  a  fund  for  repayment  of  the  principal, 
the  mortgagor  should  attorn  as  tenant  to  Aplin,  it  Avas  Avitnessed  that  the 
mortgagor  and  mortgagee  in  pursuance  of  the  agreement  constituted  Aplin 
receiA'er  of  tlie  rents  and  profits  of  the  premises,  Avith  poAvers  of  entry  and 
distress,  and  that  the  mortgagor  attorned  to  Aplin  and  became  his  tenant 
from  year  to  year ;  provided  that,  on  default  in  payment,  the  mortgagee 
might  enter  and  avoid  the  tenancy  created  by  the  attornment,  and  that  noth- 
ing contained  in  the  deed  should  abridge  his  rights  or  poAvers  under  the  mort- 
gage. After  execution  of  this  deed,  and  after  default  in  payment  on  the 
appointed  day  of  the  principal  sum  secured  by  the  mortgage,  the  moi'tgagor 
Avas  adjudicated  a  bankrupt,  and  thereupon  Aplin  distrained  on  his  goods  on 
the  premises  for  a  year's  rent.  The  chief  question  Avas,  Avhich  of  the  tAvo 
parties  —  the  mortgagee,  or  the  assignees  in  bankruptcy  of  the  mortgagor — • 
Avas  entitled  to  the  proceeds  of  this  distress. 

Tlie  M.  R.  decided  in  favour  of  the  assignees,  holding  that  the  relation  of 
landlord  and  tenant  did  not  exist  between  the  bankrupt  and  the  receiver,  for, 
as  the  receivership  deed  recited  the  true  state  of  the  title,  it  could  not  by 
.estoppel  constitute  that  relation,  and  that  consequently  no  estate  Avas  con- 
ferred on  Aplin  to  Avhich  the  right  of  distress  could  be  annexed  so  as  to  be 
available  against  the  assignee  of  the  mortgagor.  It  seems,  hoAvever,  that  his 
Honour,  in  I'cferring  to  Dancer  v.  Hastings,  4  Bing.  34,  (in  Avhich  a  demise 
by  a  receiver  appointed  by  the  Court  of  Chancery  Avas  determined  to  be  a 
good  lease  to  entitle  him  to  distrain  and  to  estop  the  tenant  from  denying  tlie 
tenancy,)   did  not  notice  the  report  of  that  case  in   12  B.  Moore,  2,  Avhich 


83(3  KEECH    V.    HALL. 

report  shows  that  there  the  lease,  setting  out  the  title  of  the  lessor  as  receiver 
appointed  by  the  court,  disclosed  the  fact  that  he  had  no  interest  in  the  land. 

Against  this  decision  of  the  M.  R.  the  mortgagee  appealed,  and  the  appeal 
was  allowed  by  Lord  Chelmsford,  C  The  judgment  on  appeal  contains  a 
learned  review  of  the  authorities  upon  the  subject.  The  Lord  Chancellor 
held  that  the  circumstance  of  the  truth  of  the  case  appearing  on  the  deed, 
was  a  reason  why  the  agreement  of  the  parties  should  1)e  carried  out,  either 
by  giving  eflect  to  their  intentions  in  the  manner  prescribed,  or  by  way  of 
estoppel  to  prevent  their  denying  the  right  to  do  the  acts  which  they  had 
authorised  to  be  done ;  and  that  even  if  the  ci-eation  of  the  tenancy  diii  not 
admit  the  scintilla  of  a  reversion  to  which  the  right  of  distress  might  be 
annexed,  yet  there  was  nothing  in  such  cases  to  prevent  the  power  from  Ix'iiig 
exercised,  although  there  might  be  no  reversion  in  the  person  to  Avhom  the 
attornment  was  made ;  that  the  relation  of  landlord  and  tenant  was  in  fact 
created  by  the  intention  of  the  parties,  and  that  consequently  the  power  of 
distress  was  not  a  mere  power  in  gross  but  might  be  exercised  against  the 
assignee.  See  also  Evans  v.  Mathias,  7  E.  &  B.  590.  In  ^forton  v.  Woods, 
L.  R.  4  Q.  B.  293;  38  L.  J.  Q.  B.  81,  the  Court  of  Exchequer  Chamber 
exjjressly  followed  the  above  decision  of  Lord  Chelmsford,  C,  and  the  last- 
mentioned  case  was  followed  by  the  C.  A.  in  Ex  parte  Punnett,  IG  Ch.  D.  220, 
50  L.  J.  Ch.  212. 

With  respect  to  the  nature  of  the  mortgagor's  possession  after  the  mort- 
gage, where  there  is  no  stipulation  that  he  should  be  allowed  to  remain  in 
possession  for  any  certain  time,  there  seems  to  be  more  difficulty.  Messrs. 
Coote  and  Morley,  in  an  elaborate  note  to  Watkins  on  Conveyancing,  deliver 
it  as  their  opinion,  that  "  if  there  be  no  express  agreement  originally  as  to 
the  period  of  possession,  and  the  mortgagor,  being  the  occupant,  remain  in 
possession  with  the  consent  of  the  mortgagee,  it  seems  that,  in  such  a  case,  he 
ought  to  be  considered  strictly  as  tenant  at  will." 

This  is  true,  if  it  be  admitted  that  he  has  remained  in  possession  vith  the 
consent  of  the  mortgagee.  But  tlie  more  difficult  question  seems  to  l)e  under 
what  circumstances  shall  the  mortgagee's  consent  be  taken  to  exist,  and  shall 
it  be  implied  merely  from  the  fact  of  his  abstaining  from  ousting  the  mort- 
gagor immediately  after  the  execution  of  the  mortgage?  Certainly  neither 
the  case  of  Thunder  dem.  Weaver  v.  Belcher,  3  East,  450;  nor  that  of  Smartle 
V.  Williams,  1  Salk.  246;  3  Lev.  387,  which  are  cited  by  Messrs.  Coote  and 
Morley,  have  any  tendency  in  favour  of  such  an  implication;  for,  in  the 
former,  ejectment  was  brought  against  a  tenant  let  into  possession  hy  the 
mortgagor  after  the  mortgage;  and,  as  there  had  been  no  recognition  of  him 
by  the  mortgagee,  there  was  judgment  against  him ;  and  so  far  was  the  court 
from  considering  that  the  mortgagor  would,  under  the  circumstances  above 
supposed,  have  been  tenant  at  will,  had  he  remained  himself  in  possession 
instead  of  letting,  that  Lord  EUenborough  says,  "a  mortgagor  is  no  more 
than  a  tenant  at  sufferance,  not  entitled  to  any  notice  to  quit;  and  one  tenant 
at  sufferance  cannot  make  another." 

In  Smartle  v.  Williams  the  mortgagor  certainly  remained  in  possession, 
and  that  with  the  express  consent  of  the  mortgagee,  for  Holt,  C.  J.,  says: 
"  Upon  executing  the  deed  of  mortgage,  the  mortgagor,  bi/  the  covenant  to 
enjoy  till  default  of  payment,  is  tenant  at  will."  But  in  that  case  the  mort- 
gagee had  assigned  the  mortgage;  and  the  question  was,  whether,  by  doing 
so,  he  had  determined  his  will,  and  whether  the  mortgagor's  subsequent  con- 
tinuance in  possession  divested  the  estate  of  the  assignee,  and  turned  it  to  a 


KEECH   V.    HALL.  837 

right  so  as  to  prevent  a  person  to  Avhom  the  assiainee  aftenvards  assigned, 
and  who  brought  the  ejectment,  from  taking  any  k'gal  interest ;  upon  which 
point  the  court  liekl  that  it  had  no  such  ertect,  since  the  mortgagor  was,  at  all 
events,  tenant  at  sufferance  after  the  assignment. 

And  it  is  not  believed  that  there  exists  any  decision  in  which  a  mortgagor 
remaining  in  possession,  after  an  absolute  conveyance  away  of  his  estate,  by 
way  of  mortgage,  without  any  consent  on  the  part  of  the  mortgagee,  express 
or  to  be  implied  otherwise  than  from  his  silence,  has  been  considered  in  any 
other  light  than  as  tenant  at  sufferance,  to  the  definition  of  whom  he  seems 
stx'ictly  to  answer,  being  a  person  who  comes  in  by  right,  and  holds  over  vnthout 
right:  see  Co.  Litt.  57,  and  Lord  Ilale's  MSS.,  note  5,  where  the  following 
case  is  put,  which  seems  analogous  :  —  "if  tenant  for  years  surrenders,  and 
still  continues  possession,  he  is  tenant  at  sufterance  or  disseisor  at  election." 

This  subject  has  been  treated  at  some  length,  because  the  reader  will  find 
it  often  said  that  a  mortgagor  in  possession  is  tenant  at  v:ill  quodammodo  ;  an 
idea  which  Lord  Mansfield  especially  seems  to  have  countenanced,  for  in  the 
principal  case  he  says,  "when  the  mortgagor  is  left  in  possession,  the  true 
inference  to  be  draw'u  is  an  agreement  that  he  shall  possess  the  premises  at 
will,  in  the  strictest  sense  :  and  therefore,  no  notice  is  ever  given  him  to  quit, 
and  he  is  not  even  entitled  to  reap  the  crop,  as  other  tenants  at  will  are, 
because  all  is  liable  to  the  debt : "  and  in  Moss  v.  Gallimore,  which  will  be 
printed  in  this  collection,  he  calls  the  mortgagor  "tenant  at  will  quodam- 
modo." Whereas  Lord  Ellenborough,  in  Thunder  v.  Belcher,  denominated 
him  "tenant  at  sufterance;"  and  it  is  submitted  that  it  would  be  more 
convenient  to  range  his  possession  under  some  one  of  the  ancient  and  well- 
known  descriptions  of  tenancy  than  to  invent  the  new  and  anomalous  class 
of  tenants  at  v:ill  quodammodo,  for  the  only  purpose  of  including  it.  See 
Litt.  sec.  381. 

["  A  mortgagor  is  not  in  all  respects  a  mere  l)ailiff',  he  is  much  like  a  bailift"; 
he  is  not  a  mere  tenant  at  will ;  in  fact,  he  can  be  described  merelj'  by  saying 
he  is  a  mortgagor."  Fer  Parke,  B.,  Litchfield  v.  Ready,  20  L.  J.  Exch.  51. 
"He  is  not  a  tenant  at  a\\,"  per  Pattesou,  J.,  Wilton  v.  Dunn,  17  Q.  B.  299, 
and  Watson,  B.,  Hickman  v.  Machin,  4  H.  &  N.  722.  "  Tlie  case  of  Keech  v. 
Hall  established  the  doctrine  that  (in  the  absence  of  any  contract  or  conduct 
to  vary  the  application  of  the  law)  a  mortgagee  having  the  legal  estate  may, 
Avithout  any  notice  to  quit,  treat  the  tenant  or  lessee  of  the  mortgagor  as  a 
trespasser  or  Avrong-doer ;  and  that  the  possession  held  by  the  mortgagor,  or 
those  holding  under  him  imtil  the  mortgagee  thinks  fit  to  take  it,  is  in  the 
strictest  sense  precarious,  and  held  at  the  mere  will  of  the  mortgagee,"  per 
Lord  Selborne,  Loics  v.  Telford,  1  App.  Cas.  426;  45  L.  J.  Ex.  ()13;  and  see' 
the  judgment  in  Jolly  v.  Arbuthnot,  4  De  G.  &  J.  224;  Powell  v.  Allen,  4  Kay 
&  J.  343;  Thorp  v.  Facey,  35  L.  J.  C.  P.  349;  Ex  parte  Isheru-ood,  22  Ch.  D. 
391,per  Jessel,  M.  R. 

In  Gibbs  v.  Cruickshank,  L.  R.  8  C.  P.  454,  42  L.  J.  C.  P.  273,  the  Court 
seem  to  adopt  the  view  that  the  mortgagor  is  a  tenant  at  sufterance,  but  that 
a.t  anj'  rate  he  cannot  create  a  sub-tenancj' ;  his  sub-tenants  are  mere  tort 
feasors  and  cannot  sue  the  mortgagee  in  trespass.] 

Upon  the  whole  it  is  concluded,  1st.  That,  if  there  be  in  the  mortgage- 
deed  an  agreement  that  the  mortgagor  shall  continue  in  possession  till  default 
of  payment  on  a  certain  day,  he  is  in  the  meanwhile  termor  of  the  intervening 
term.  2dly.  That  if  default  be  made  on  that  day,  he  becomes  tenant  at  suf- 
ferance.    3dlv.  That  when  there  is  no  such  agreement,  he  is  tenant  at  sufler- 


838  KEECH   V.    HALL. 

ance  immediately  upon  the  execution  of  tlie  mortjjacfe,  unless  the  mortgagee 
expressly  or  impliedly  consented  to  his  remaining  in  possession.  4thly.  That 
such  consent  renders  him  tenant  at  will.  Sthly.  That  if  in  any  of  the  last 
three  cases  he  let  in  tenants,  they  may  [in  cases  not  falling  within  the  Con- 
veyancing Act,  1881,  s.  18]  be  treated  by  the  mortgagee,  if  he  think  proper, 
as  tort  feasors.  Gthly.  That,  if  the  mortgagee  recognise  their  po.ssession, 
they  become  his  tenants.  Lastly,  tliat  the  mere  receipt  of  interest  from  the 
mortgagor  docs  not  amoiuit  to  sucli  a  recognition.  These  two  last  proposi- 
tions must,  however,  now  be  taken  subject  to  the  doubts  expressed  in  Evans 
V.  Elliot. 

[By  the  Judicature  Act,  1873,  36  &  37  Vict.  c.  G6,  s.  25,  subs.  5,  it  is  provided 
that  "  a  mortf/agor  entitled  for  the  time  being  to  the  possession  or  receipt  of 
the  rents  and  profits  of  any  land  as  to  whicli  no  notice  of  his  intention  to  take 
possession  or  to  enter  into  the  receipt  of  the  rents  and  profits  thereof,  shall 
have  been  given  by  the  mortgagee,  may  sue  for  such  possession  or  for  the 
recovery  of  such  rents  or  profits,  or  to  prevent  or  recover  damages  in  respect 
of  any  trespass  or  other  wrong  relative  thereto  in  his  own  name  only,  unless 
the  cause  of  action  arises  upon  a  lease  or  other  contract  made  l)y  him  jointly 
with  any  other  person."] 

The  relation  between  mortgagor  and  mortgagee  with  reference  more  espe- 
cially to  proceedings  for  the  recovery  of  rents  from  the  tenants  of  the  land,  is 
further  considered  in  the  note  to  Moss  v.  GalUmorc,  post. 


Relation  of  a  mortgagee  to  a  tenant  under  a  lease  made  by  a 
mortgagor  subsequently  to  the  mortgage  and  -while  remaining  in 
possession  of  the  mortgaged  premises.  —  (As  tO  the  tenant's  posi- 
tion with  reference  to  the  payment  of  rent,  see  American  notes 
to  Moss  V.  Gallimore,  infra.~)  The  mortgagor  cannot  make  a 
lease  which  will  be  binding  upon  the  mortgagee ;  McDermott  v. 
Burke,  16  Cal.  580 ;  Clary  v.  Owen,  15  Gray  522.  The  mort- 
gagee, in  the  absence  of  statute,  is  entitled  to  the  immediate 
possession  of  the  mortgaged  premises ;  Colman  v.  Packard,  16 
]\lass.  39 ;  Doe  v.  Grimes,  7  Blackf.  (Ind.)  1 ;  may  enter  with- 
out notice  to  the  mortgagor;  Holbrook  v.  Lackey,  11  Met.  458; 
Blaney  v.  Bearce,  2  Greenl.  132  ;  Hartshorn  v.  Hubbard,  2  N. 
H.  453 ;  Brown  v.  Cram,  1  ib.  169 ;  and  such  an  entry  will 
authorise  the  retaining  of  possession  and  the  taking  of  the 
rents  and  profits ;  Welch  v.  Adams,  1  Met.  494 ;  Reed  v.  Davis, 

4  Pick.  215. 

Trespass.  —  The  mortgagee  must  enter  before  he  can  main- 
tain trespass  q.  cl.  against  the  mortgagor  or  his  tenant ;  JNIayo 
V.  Fletcher,  14  Pick.  525,  532 ;  Furbush  v.  Goodwin,  29  N.  H. 
321;  Wheeler  v.  Montefiore,  2  Q.  B.  138;  Litchfield  v.  Ready, 

5  Ex.  939,  945 ;  otherwise,  though,  if  the  injury  be  to  the  free- 


KEECH   V.    HALL.  839 

hold ;  Leavitt  v.  Eastman,  77  Me.  117 ;  Cole  v.  Stewart,  11 
Cush.  181 ;  Page  v.  Robiiison,  10  ib.  99 ;  Furbush  v.  Goodwin, 
sup7'a. 

Ejectment.  —  The  mortgagee  may  maintain  an  action  of  eject- 
ment against  the  tenant  without  notice,  to  quit;  Doe  v.  Mace, 

7  Blackf.  (Ind.)  2 ;  Den  v.  Stockton,  7  Hals.  (N.  J.)  322 ;  New 
Haven  Bank  v.  McPartlan,  40  Conn.  90 ;  Carroll  v.  Ballance, 
26  111.  9;  Rogers  v.  Humphreys,  4  Ad.  &  E.  299  at  313; 
Thunder  (7.  Weaver  v.  Belcher,  3  East  449 ;  or  the  mortgagee 
may  eject  the  tenant  without  notice  to  quit ;  Corner  v.  Sheehan, 
74  Ala.  452;  Bank  of  Wash.  v.  Hupp,  10  Grattan  23  at  49; 
Bartlett  v.  Hitchcock,  10  Bradw.  (111.)  87 ;  Stedman  v.  Gassett, 
18  Vt.  346 ;  Downard  v.  Groff,  40  Iowa  597 ;  Brown  v.  Cram, 
1  N.  H.  169.  For  the  doctrine  peculiar  to  Ncav  York,  see  Lane 
V.  King,  8  Wend.  584;  M'Kircher  v.  Hawley,  16  Johns.  289  ; 
and  the  tenant,  when  ejected,  cannot  retain  the  emblements ; 
Lynde  v.  Rowe,  12  Allen  101 ;  Mayo  v.  Fletcher,  14  Pick.  525 ; 
Jones  V.  Thomas,  8  Blackf.  (Ind.)  428 ;  Downard  v.  Groff, 
supra;  Lane  v.  King,  supra.  If  the  mortgagee  enter,  neither 
the  mortgagor  nor  his  tenant  will  be  entitled  to  the  emble- 
ments ;  Clary  v.  Owen,  15  Gray  522,  525. 

Crops  and  Improvements.  —  The  purchaser  at  a  foreclosure 
sale  is  entitled  to  the  crops  growing  at  the  time  of  sale ;  Shep- 
ard  V.  Philbrick,  2  Den.  (N.  Y.)  174 ;  not  only  as  against 
the  mortgagor,  but  all  persons  claiming  under  him ;  Ran- 
kin V.  Kinsey,  7.  Bradw.  (111.)  215,  219 ;  and  may  maintain 
trespass  against  the  mortgagor  or  his  tenant  for  taking  and 
carrying  them  away ;  Downard  v.  Groff,  supra ;  or  replevin, 
Scriven  v.  Moote,  36  Mich.  64  ;  or  he  may  proceed  by  injunc- 
tion to  restrain  the  mortgagor's  creditor  from  levying  upon 
the  growing  crops ;  Crews  v.  Pendleton,  1  Leigh  (Va.)  297. 
That  the  tenant,  when  the  mortgagee  has  recovered  possession 
of  the  mortgaged  premises,  cannot  be  allowed  compensation 
for  improvements ;    see  Haven  v.  Boston  &  Worcester  Corp., 

8  Allen  369;   Haven  v.  Adams,  8  ib.  363.     ' 

Action  for  mesne  profits  by  the  mortgagee  against  the  tenant.  — 
Whether  the  entry  of  the  mortgagee  into  the  mortgaged  prem- 
ises, (it  being  unimportant  whether  the  entry  was  made  with 
or  without  action,)  relates  back  so  as  to  allow  the  mortgagee 
to  recover  in  an  appropriate  form  of  action  the  mesne  profits 
accruing  prior  to  the  entry,  is  a  question  not  free  from  doubt. 


840  KEECH   V.    HALL. 

The  prevailing  doctrine  in  this  country  is  that  held  in  Massachu- 
setts and  New  Jersey,  probably,  but  in  Virginia  see  Bank  of 
Wash.  V.  Hupp,  10  Grattan  23  at  49.  In  Mass.,  Mayo  v.  Fletcher, 
14  Pick.  525,  531,  it  was  said  that  mesne  profits  accruing  prior  to 
the  entry  by  the  mortgagee  could  not  be  recovered,  because  the 
tenant  was  entitled  to  the  rents  and  profits  so  long  as  he  was 
allowed  to  remain  in  possession  of  the  mortgaged  premises.  In 
New  Jersey,  the  majority  of  the  court  held  in  Sanderson  v.  Price, 
1  Zab.  637,  that  the  tenant  would  be  liable  to  the  mortgagee 
for  mesne  profits  only  from  actual  entry,  although  four  dissent- 
ing judges,  following  the  Vermont  cases,  L3^man  v.  Mower,  6 
Vt.  345  and  cases  there  cited,  held  that  after  actual  entry  by 
the  mortgagee  the  tenant  would  be  liable  from  the  time  of 
iictual  notice  from  the  mortgagee  and,  in  the  absence  of  other 
notice,  from  the  time  of  the  service  of  the  process  in  the  eject- 
ment proceeding ;  see,  also,  Henshaw  v.  Wells,  9  Humph. 
(Tenn.)  568,  582.  In  England,  it  is  held  that  after  actual 
entry,  whether,  by  action  or  not,  the  entry  relates  back  so  that 
the  mortgagee  may  recover  the  mesne  profits  if  he  proves  his 
title  to  possession  at  the  time  they  were  taken ;  Barnett  v. 
Guilford,  11  Ex.  19,  31.  In  England,  therefore,  although  the 
mortgagee  cannot  by  mere  notice  compel  the  tenant  to  pay  him 
the  rents  then  due,  as  rents,  yet  he  may  be  able  in  an  action 
for  mesne  profits  to  recover  the  equivalent  for  the  rents.  As 
to  the  form  of  action  for  mesne  profits,  it  has  been  held.  Good- 
title  V.  North,  Douglas  584,  that  mesne  profits,  prior  to  the  day 
of  the  demise  laid  in  the  declaration  in  ejectment,  may  be 
recovered  in  an  action  for  use  and  occupation,  if  the  plaintiff 
waives  the  tort,  but  that  use  and  occupation  will  not  lie  for 
mesne  profits  accruing  subsequently  to  that  day,  as  the  plain- 
tiff, having  in  the  ejectment  proceeding  treated  the  defendant 
B-s  a  trespasser,  is  estopped  from  treating  him  as  a  tenant.  Birch 
V.  Wright,  1  T.  R.  378,  87.  After  the  mortgagee  has  entered, 
he  may  recover  mesne  profits  from  that  time  from  the  tenant 
in  possession  refusing  to  yield  the  possession,  Northampton 
Mills  V.  Ames,  8  Met.  1;  Hill  v.  Jordan,  30  Me.  367,  even 
though  the  entry  be  ineffectual  for  the  purpose  of  foreclosure, 
Northampton  Mills  v.  Ames,  supra. 

Writ  of  entry.  —  That  a  mortgagee,  never  having  entered, 
may,  Avithout  notice  to  the  mortgagor  to  quit,  maintain  a  writ 
of  entry  against  him ;  see  Mayo  v.  Fletcher,  14  Pick.  525,  530 ; 


KEECH    V.    HALL.  841 

Blaney  v.  Bearce,  2  Greenl.  132,  7 ;  Hobart  v.  Sanborn,  13  N.  H. 
221 ;  Hartshorn  v.  Hubbard,  2  ib.  453 ;  and  as  the  tenant 
stands  in  the  place  of  the  mortgagor  with  the  same  rights  and 
liabilities,  the  mortgagee  without  having  entered  can  Avith- 
out  notice  undoubtedly  maintain  a  writ  of  entry  against  the 
tenant.  If,  after  the  mortgagee  has  entered,  his  possession  is 
disturbed  by  the  mortgagor  or  his  tenant,  the  mortgagee  can 
maintain  a  writ  of  entry,  and  recover  damages  for  the  rents 
and  profits  of  which  he  has  been  wrongfully  deprived ;  Stewart 
V.  Davis,  63  Me.  539;  Miner  v,  Stevens,  1  Gush.  (Mass.)  468. 


WIGGLESWORTH   v.   DALLISON. 


TRINITY.  — Id   GEO.  3. 

[UEPOUTIOD    DOUGL.    201.] 

A  custom  that  the  tenant^  lohether  hy  i^arol  or  deed,  shall  have 
the  way-going  crop,  after  the  expiration  of  his  term,  is  good, 
if  not  repugyiant  to  the  lease  hy  tvhich  he  holds  (a). 

This  was  an  action  of  trespass  for  moAving,  carrying  aAvay, 
and  converting  to  the  defendant's  own  use,  the  corn  of  the 
plaintiff,  growing  in  a  field  called  Hihaldstoiv  Leys,  in  the  parish 
of  Hihaldstoiv,  in  the  county  of  Lincoln.  The  defendant  Dalli- 
son  pleaded  liherum  tenementum,  and  the  other  defendant  justi- 
fied as  his  servant.  The  plaintiff  replied,  that  true  it  was  that 
the  locus  in  quo  was  the  close,  soil,  and  freehold  of  Dallison ; 
but,  after  stating  that  one  Isabella  Dallison,  deceased,  being 
tenant  for  life,  and  Dallison,  the  reversioner  in  fee,  made  a 
lease  on  the  2nd  of  March,  1753,  by  which  the  said  Isabella 
demised,  and  the  said  Dallison  confirmed,  the  said  close  to  the 
plaintiff,  his  executors,  administrators,  and  assigns,  for  twenty- 
one  years,  to  be  computed  from  the  1st  of  May,  1755,  and  that 
the  plaintiff,  by  virtue  thereof,  entered  and  continued  in  posses- 
sion till  the  end  of  the  said  term  of  tAventy-one  years  —  he 
pleaded  a  custom  in  the  following  words,  viz.,  "  That  within 
the  parish  of  Hihaldstoiv,  there  now  is,  and,  from  time  whereof 
the  memory  of  man  is  not  to  the  contrar}^,  there  hath  been  a 
certain  ancient  and  laudable  custom,  there  used  and  approved 
of,  that  is  to  say,  that  every  tenant  and  farmer  of  any  lands 
within  the  same  parish,  for  any  term  of  years  which  hath  ex- 

(a)  And  where  entitled  by  custom       remains  in  the  tenant.     See  Griffiths 
to   the  way-going   crop,  he  Iceeping       y.  Puleston,  13  M.  &  W.  359. 
the  fences  in  repair,  the  possession 

842 


WIGGLESWORTH   V.    DALLISON.  843 

pired  on  the  first  day  of  May  in  any  year,  hath  been  used  and 
accustomed,  and  of  riglit  ought,  to  have,  take,  and  enjoy,  to  liis 
own  use,  and  to  reap,  cut,  and  carry  away,  when  ripe  and  lit  to 
be  reaped  and  talven  a^^•ay,  his  way-going  crop,  that  is  to  say, 
all  the  corn  growing  upcju  the  said  lands  which  hath  before  the 
expiration  of  sitch  term  been  sown  by  such  tenant  upon  any 
j)art  of  such  lands,  not  exceeding  a  reasonable  quantity  thereof 
in  proportion  to  the  residue  of  such  lands,  according  to  the 
course  and  usage  of  husbandry  in  tlie  same  parish,  and  which 
hath  been  left  standing  and  growing  upon  such  lands  at  the 
expiration  of  such  term  of  years."  He  then  stated  that,  in  the 
year  1775,  he  sowed  with  corn  part  of  the  said  close,  being  a 
reasonable  part  in  proportion  to  the  residue  thereof,  according 
to  the  course  and  usage  of  husbandry  in  the  said  parish,  and 
that  the  corn  produced  and  raised  by  such  sowing  of  the  corn 
so  sown  as  aforesaid,  being  the  corn  in  the  declaration  mentioned, 
at  the  end  of  the  term,  and  at  the  time  of  trespass  committed, 
was  standing  and  growing  in  the  said  close,  the  said  time  not 
exceeding  a  reasonable  time  for  the  same  to  stand,  in  order  to 
ripen  and  become  fit  to  be  reaped,  and  that  he  was  during  all  that 
time  lawfully  possessed  of  the  said  corn,  as  his  absolute  prop- 
ert}^  by  virtue  of  the  custcun.  The  defendant,  in  his  rejoinder, 
denied  the  existence  of  any  such  custom,  and  concluded  to  the 
country.  The  cause  was  tried  before  Eyre,  Baron,  at  the  last 
assizes  for  Lincolnshire,  when  the  jury  found  the  custom  in  the 
words  of  the  replication. 

Baldwin  moved,  in  arrest  of  judgment,  that  such  a  custom 
was  repugnant  to  the  terms  of  the  deed,  and  therefore,  though 
it  might  be  good  in  respect  to  parol  leases,  could  not  have  a 
legal  existence  in  the  case  of  cases  by  deed.  He  relied  on 
Trumioer  v.  Carivardine,  before  Yates,  Justice  (a),  the  circum- 
stances of  which  case  were  these : 

"  The  plaintiff  had  been  lessee  under  the  corporation  of  Here- 
ford for  a  term  of  twenty-one  years,  \vhich  expired  on  the  4th 
of  December,  1707.  In  the  lease  there  was  no  covenant  that  the 
tenant  should  have  his  off-going  crop.  In  the  seed-time,  before 
the  expiration  of  the  term,  he  sowed  the  fallow  with  wheat. 
The  succeeding  tenant  obstructed  him  in  cutting  the  wheat 
when  it  became  ripe,  and  cut  and  housed  it  himself,  for  his  own 

(a)  At  the  summer  assizes  for  Herefordshire,  17G9. 


844  WIGGLESWORTH    V.    DALLISON. 

use.  Upon  this  the  plaintiff  bronght  an  action  on  the  case,  and 
declared  on  a  custom  in  Herefordshire  for  tenants  to  quit  their 
farms  at  Christmas  or  Candlemas  to  reap  the  corn  sown  the 
preceding  autumn.  Yates^  Justice,  held  the  custom  could  not 
legally  extend  to  lessees  by  d^ed,  thougli  it  might  prevail,  by 
implication,  in  the  case  of  parol  agreements.  That,  in  the  case 
of  a  lease  by  deed,  both  parties  are  bound  by  ihc  ex})rcss  agree- 
ments contained  in  it,  as  that  the  term  shall  expire  at  sue  h  a 
day,  &c. ;  and,  therefore,  all  implication  is  taken  away.  That, 
if  such  a  custom  should  lie  set  up,  the  Statute  of  Frauds  would 
be  thereby  superseded  in  Herefordslure  (^ci).  iVccordingly  the 
plaintiff  did  not  recover  on  the  custom,  although  on  another 
count  in  trover,  in  the  same  declaration,  he  had  a  verdict." 

A  rule  to  show  cause  was  granted. 

The  case  Avas  argued  on  Tuesday,  the  8th  of  June,  by  HilU 
Serjeant,  Chambre  and  Dayrell.,  for  the  plaintiff,  and  Cust^ 
Baldwin,  Balfjuy,  and  G-ough,  for  the  defendants ;  Avhen  tliree 
objections  were  made  on  the  part  of  the  defendants,  viz.;  1. 
That  the  custom  was  unreasonable.  2.  That  it  was  uncertain. 
3.  That,  as  had  been  contended  on  moving  for  the  rule,  it  was 
repugnant  to  the  deed  under  which  the  plaintiff  had  held. 

For  the  plaintiff  it  Avas  argued.  1.  That  it  was  not  an  un- 
reasonable custom,  because,  without  an  express  agreement,  or 
such  a  custom  as  this,  there  could  be  no  crop  the  last  year  of  a 
term,  but  the  tenant  would  not  sow  if  he  could  not  reap,  and 
the  landlord  would  not  have  a  right  to  enter  till  the  expiration 
of  the  term.  That  it  was  for  the  advantage  of  the  public  as 
much  as  customs  for  turning  a  plough  or  drying  nets,  on 
another  person's  land,  which  had  been  held  to  be  good  (6). 
That  it  bore  a  great  analogy  to  the  right  of  emblements,  and 
was  founded  on  the  same  principle,  namely,  the  encouragement 
of  agriculture.  It  Avas  not  prejudicial  to  any  one ;  not  to  the 
landlord,  because  without  it  his  land  must  be  unemployed  and 
unproductive  for  a  Avhole  season  ;  nor  to  the  succeeding  tenant, 
because  he  would  have  his  turn  at  the  end  of  his  term.  2. 
That  it  was  sufficiently  certain,  by  the  reference  to  the  residue 

(rt)   Qu.      This    argument    seems  such  a  custom,  it  miglit  be  said  tliat 

more  applicable  to  parol  leases,  be-  this  would  be  repugnant  to  the  Stat- 

cause,   if    a    parol    lease    for   three  ute  of  Frauds, 
years    could    be    extended    in   some  (5)    Vide  Davis,  32  b. 

degree    for  half    a   year  longer   by 


WIGGLESWORTH   V.    DALLISOX.  845 

of  the  lands  not  sown,  and  to  the  course  and  usage  of  hus- 
ban(hy  in  the  parish.  This  is  as  much  certainty  as  the  nature 
of  the  subject  will  admit  of ;  for,  if  it  had  been  that  so  many 
acres  might  be  sown  ami  reaped,  that  would  have  been  incom- 
patible with  those  variations  in  the  proportion  of  ploughed 
land,  which  arise,  at  different  times,  from  circumstances  in  the 
course  of  cultivation  and  husbandry.  Reasonable  is  an  epithet 
which  sufficiently  qualifies  the  extent  of  customs,  and  is  gen- 
erally used  in  pleading  them ;  as  with  regard  to  customary 
fines  paid  to  the  lord  of  a  manor,  estovers  prescribed  for  by  a 
party  to  be  taken  for  the  use  of  his  house,  &c.  In  the  case  of 
Bennington  v.  Taylor^  reported  in  Lutwyche  (a),  where  the 
defendant,  in  an  action  of  trespass,  had  pleaded  a  right  to  dis- 
train for  twelve  pence  for  stallage,  due  by  prescription,  for  the 
land  near  every  stall  in  a  fair,  and  on  a  motion  in  arrest  of 
judgment,  it  was  objected,  that  the  prescription  was  uncertain, 
and  therefore  void,  the  quantity  of  land  not  being  ascertained, 
the  court  held  it  to  be  certain  enough,  because  the  quantity 
was  to  be  ascertained  by  the  common  usage  of  the  fair.  In  all 
such  cases,  whether  the  quantity  or  amount  is  in  truth  reason- 
able or  not,  is  for  the  jury  to  decide.  3.  That  the  circumstance 
of  the  plaintiff's  lease  in  this  case  having  been  by  deed,  made 
no  difference.  There  was  no  agreement  contained  in  the  deed, 
that  the  defendant  Avould  depart  from  the  custom,  although 
the  parties  must  have  known  of  it  when  the  lease  was  exe- 
■c-.:ed.  He  did  not  claim  under  any  parol  contract  express  or 
implied ;  and,  therefore,  the  argument  of  repugnancy  did  not 
apply ;  and  the  Nisi  Prius  case  which  had  been  cited,  went 
upon  mistaken  reasoning.  Hill^  Serjeant,  admitted  that  he 
knew  of  no  instance  in  the  Reports,  of  a  similar  custom  to  this, 
in  the  case  of  freehold  property ;  but  he  said  that  there  were 
several  with  regard  to  copyholds  that  went  much  farther ;  and 
he  cited  Eastcourt  v.  Weekes  (5),  where  a  custom,  that  the 
executors  and  administrators  of  ever}^  customary  tenant  for 
life,  if  he  should  die  between  Christmas  and  Lady-day,  should 
hold  over  till  the  IMichaelmas  following,  is  stated  on  the  plead- 
ings (c)  ;  and  no  objection  taken  to  it  on  the  argument  of  the 
case. 

(a)  C.  B.,  E.  or  T.   12  W.  3;    2  (c)  It  is  found  by  the  special  ver- 
Lutw.  1517,  1519.                                         diet,  the  action  being  ejectment. 

(b)  T.  10  W.  3;    1  Lutw.  799,  801. 


846  WlGGLESWOllTII    V.    DALLISON. 

For  the  defendant  were  cited,  Grantham  v.  Hatoly  (a) ; 
^YMte  V.  Saioyer  (l>'),  in  which  last  case  a  custom  for  a  lord  of 
a  manor  "  to  have  connnon  of  pasture  in  all  the  lands  of  his  ten- 
ants for  life  or  years,"  which  had  heen  pleaded  in  justification 
of  a  trespass  in  the  land  of  a  tenant  for  years,  was  held  to  be 
void  and  against  law,  for  that  such  a  privilege  is  contrary  to 
the  lease,  being  part  of  the  thing  demised,  and  different  from 
a  prescription  to  have  a  heriot  from  every  lessee  for  life,  be- 
cause that  is  only  collateral  (c).  A  case  relied  on  by  Homjh- 
ton^  Justice,  in  White  v.  Sayer  ((?),  in  whicli  he  said  the  court 
had  decided  that  a  custom  for  lessees  for  years  to  have  half  a 
year  after  the  end  of  their  term,  to  remove  their  utensils,  Avas 
void,  as  being  against  law ;  Startup  v.  Dodderidye  (e),  where 
the  court  refused  to  grant  a  prohibition,  on  the  suggestion  of  a 
modus  "  to  pay,  uj)on  request,  at  the  rate  of  two  shillings  for 
every  pound  of  the  improved  yearly  rent  or  value  of  the  land," 
because  the  yearly  rent  or  value  was  variable  and  uncertain : 
bailor,  qui  tarn  v.  Scott  (/),  wheie  a  custom  having  been  found 
by  a  jury,  "  that  every  housekeeper  in  the  parish  of  Wakefield 
having  a  child  born  there,  should,  at  the  time  when  the  mother 
was  churched,  or  at  the  usual  time  after  her  delivery  when  she 
should  be  churched,  pay  tenpence  to  the  vicar,"  the  court,  on 
a  motion  in  arrest  of  judgment,  determined  that  the  custom 
was  void,  being,  1.  Uncertain,  because  the  usual  time  for 
women  to  be  churched  was  not  alleged  (^).  2.  Unreasonable, 
because  it  obliged  the  husband  to  pay  if  the  woman  was  not 
churched  at  all,  or  if  she  removed  from  the  parish,  or  died 
before  the  time  of  churching :  Carleton  v.  Brightwell  (A), 
where  the  defendant,  on  a  bill  of  tithes,  set  up  a  modus  that 
"  the  inhabitants  of  such  a  tenement,  with  the  land  usually 
enjoyed  therewith,  should  pay  such  a  sum  for  tithe  corn,"  and 


(a)  T.  13  Jac. ;  1  Hob.  132.     That  {b)  B.  R.  M.  10  Jac.  1  Palm.  211. 

case,  if  at  all  applicable,  seems  to  (c)  Cites  21  H.  7,  1-1. 

me  to  malve  for  tlie  plaintiff.     It  is  {d)  B.  R.  M.  10  Jac.  1  Palm.  211. 

curious  in  one  respect,  viz.,  tliat  the  (e)  E.  4  Ann.;  2  Ld.  Raym.  1158; 

question  was  brouglit  on  in  an  action  2  Salk.  657;  1  Mod.  GO. 
of   debt  on  a   common  bond  condi-  (/)  E.  2.  G.  2;  2  Ld.  Raym.  1258. 

tioned  for  the  payment  of  201  to  the  {g)  In   tliat   case   the   custom,   as 

plaintiff  if  a  certain  crop  of  corn  did  suggested,  did  not  refer  to  tlie  usage 

of  riglit  belong  to  him ;  or,  in  otlier  of  the  parish, 
words,  if  the  question  of  law  was  in  (/i)  Cauc.  T.  1728 ;  2  P.  W.  462. 

his  favour. 


WIGGLESWORTH   V.   DALLISON.  847 

it  was  held  by  the  Master  of  the  rolls  to  be  void  for  uncer- 
tainty ;  Harrison  v.  Sharp  (a),  where  a  modus  that,  '"  when  any 
of  the  inclosed  pastures  in  a  certain  vill  were  ploughed  and 
sown  with  corn  or  grain  of  any  kind,  or  laid  for  meadow,  and 
mown  and  made  into  hay,  tithes  in  kind  were  paid  to  the 
rector,  but  when  eaten  and  depastured,  then  the  occupier  paid 
to  the  vicar  one  shilling  in  the  pound  of  the  yearly  rent  or 
value  thereof,  and  no  more,  upon  some  day  after  Michaelmas 
yearly,"  was  held  void,  on  the  authority  of  /Startup  v.  Dod- 
deridge  ;  Wilkes  v.  Broadbent  (5),  where  the  Court  of  Common 
Pleas,  and  afterwards,  on  error  brought  the  Court  of  King's 
Bench,  held  a  custom  found  by  verdict,  "  for  the  lord  of  a 
manor,  or  the  tenants  of  his  collieries  who  had  sunk  pits,  to 
throw  the  earth  and  coals  on  tlie  land  near  such  pits,  such 
land  being  customary  tenement  and  part  of  the  manor,  there 
to  continue,  and  to  lay  and  continue  wood  there  for  the  neces- 
sary use  of  the  pits,  and  to  take  coals  so  laid,  away  in  carts, 
and  to  burn  and  make  into  cinders  coals  laid  there,  at  their 
pleasure,"  to  be  void,  because,  among  other  reasons,  the  word 
near  was  too  vague  and  uncertain ;  Oland  v.  Burdwiek  (c), 
where  a  feme  copyholder  durante  viduitafe,  having  sowed  the 
land,  and  then  married,  it  was  determined  that  the  lord  should 
have  the  corn,  upon  the  principle,  that  when  the  interest  in 
land  is  determined  by  the  act  of  the  party,  he  shall  not  have 
the  crop :  an  anonymous  case  in  Moore  (f?),  where  it  was  held, 
that  a  custom  "  that  lessee  for  years  should  hold  for  half  a  year 
over  his  term,"  was  bad ;  Boe,  lessee  of  Bree  v.  Lees  (e),  where, 
in  an  ejectment  to  recover  a  farm  of  about  sixty  acres,  of 
which  fifty-one  were  inclosed,  and  nine  lay  in  certain  open 
fields,  a  special  case  was  reserved,  which  stated  a  custom,  "  that 
when  a  tenant  took  a  farm,  in  which  there  was  any  open  field, 
more  or  less  for  an  uncertain  term,  it  was  considered  as  a  hold- 
ing from  three  years  to  three  years ; "  and  though  the  court 
decided  against  the  custom  on  other  grounds,  yet,  by  their 
reasoning,  it  clearly  appeared  that  they  thought  it  void  for 
uncertainty,  because  the  quantity  of  open  ground  was  not  as- 
certained, and  one    rood  might  determine   the  tenure  of  100 

(rt)  T.  1724;  Bmib.  174.  (d)  H.  3  Ed.  6;  Moore  8,  pi.  27. 

(b)  B.  R.  E.  18  G.  2,  2  Str.  1224.  (e)  C.  B.  M.   18  G.  4.      Since  re- 

(c)  B.  R.  H.  37  EI.  Cro.  Eliz.  460 ;  ported  in  2  Blackst.  1171. 
5  Co.  IIG. 


848  WIGGLESWORTH   V.   DALLISON. 

acres  of  land  inclosed.  Besides  the  above  authorities  (a),  the 
case  before  Yates,  Justice,  was  much  relied  on.  It  Avas  ad- 
mitted, that,  in  cases  where  the  usual  crop  of  the  country  is 
such,  that  it  cannot  coni^  to  maturity  in  one  year,  a  right  to 
hold  over  after  the  end  of  the  term,  in  a  parole  demise,  may  be 
raised  by  implication ;  as  where  saffron  is  cultivated,  in  Carrtr 
hridgeshire ;  liquorice,  near  Pontefraet ;  or  tobacco,  which  for- 
merly used  to  be  planted  in  Lincolnshire  ;  but  it  was  contended, 
that,  in  such  cases,  a  lease  by  deed  would  preclude  such  impli- 
cation, as  the  parties  must  be  supposed  to  have  described  all 
the  circumstances  relative  to  the  intended  tenure  in  the  writ- 
ten instrument.  Such  a  custom  as  that  set  up,  in  the  present 
case,  could  not,  it  was  said,  be  of  sufficient  antiquity  with 
respect  to  leases  by  deed,  as,  in  the  time  of '  Richard  I.,  and 
long  afterwards,  tenants  had  no  permanent  interest  in  tlieir 
lands ;  or,  if  there  could  be  such  a  custom,  the  plaintiff's  lease 
could  not  be  within  it,  because  the  custom  must  have  ai)plied 
to  the  1st  of  May,  old  style,  and  this  lease  was  made  and  com- 
menced after  the  alteration  was  introduced  by  24  Geo.  2,  c. 
23  (6). 

The  Court  took  time  to  consider ;  and  this  day,  Lord  Mans- 
field delivered  their  opinion  as  folloAVS : 

Lord  Mansfield.  —  We  have  thought  of  this  case,  and  we  are 
all  of  opinion,  that  the  custom  is  good.  It  is  just,  for  he  who 
sows  ought  to  reap,  and  it  is  for  the  benefit  and  encouragement 
of  agriculture.  It  is,  indeed,  against  the  general  rule  of  law 
concerning  emblements,  which  are  not  allowed  to  tenants  who 
know  when  their  term  is  to  cease,  because  it  is  held  to  be  their 
fault  or  folly  to  have  sown,  when  they  knew  their  interest 
would  expire  before  they  could  reap  (c).  But  the  custom  of  a 
particular  place  may  rectify  what  otherwise  would  be  impru- 
dence or  folly.  The  lease  being  by  deed  does  not  vary  the 
case.     The  custom  does  not  alter  or  contradict  the  agreement 

(a)  4  Co.  51  b;  1  Roll.  Abr.  5G3,  of  it,  as  from  the  errors  in  the  for- 

pl.  9,  et  Co.  Litt.  55,  were  also  cited  mer  method  of  computation  the  nom- 

for  the  general  principles  concerning  inal  day  was  continually  deviating,  by 

customs  and  emblements.  degrees,  from  the  natural  day. 

(6)  The  new  style  commenced  the  (c)  [See  14  &  15  Vict.  c.  25,  s.  1, 

1st  of  January,  1753.    But  if  this  ar-  giving  the  tenant  in  lieu  of  erable- 

gument  were  admitted  in  its  full  ex-  ments  a  right  to  occupy  until  the  end 

tent,  no  custom  could  exist  where  a  of  the  current  year  of  his  tenancy.] 
certain  day  of  the  month  made  part 


WIGGLESWORTH    V.    DALLISON".  349 

in  the  lease ;  it  only  superadds  a  right  wliich  is  consequential 
to  the  taking,  as  a  heiiot  may  be  due  by  custom,  although  not 
mentioned  in  the  grant  or  lease  (a). 

TJie  rule  discharged  (F). 


Few  questions  are  of  more  frequent  practical  occurrence  tlian  tliose  which 
involve  the  adniissil)ility  of  parol  evidence  of  custom  and  usa,<ie  for  the  pur- 
pose of  annexiui^  incidents  to,  or  explaining-  the  meaning  of.  written  con- 
tracts. In  one  of  the  later  cases  on  the  subject,  the  following  luminous 
account  of  this  head  of  tlie  law  was  given  by  Parke,  B.,  delivering  the 
judgment  of  the  Court  of  Exchequer.     1  M.  &  W.  474. 

"  It  has  long  been  settled,"  (said  his  lordship,)  "  that  in  commercial  trans- 
actions extrinsic  evidence  of  custom  and  usage  is  admissible  to  annex  inci- 
dents to  written  contracts  in  matters  with  respect  to  which  they  are  silent. 
The  same  rule  has  also  been  applied  to  contracts  in  other  transactions  of  life, 
in  which  known  usages  have  been  established  and  prevailed ;  and  this  has 
been  done  upon  the  principle  of  presumption  that  in  such  transactions,  the 
parties  did  not  mean  to  ex2n'ess  in  writing  the  lohole  of  the  contract  by  xohich  they 
intended  to  he  bound,  but  to  contract  icith  reference  to  those  knoicn  usages. 
AVhcthcr  such  a  relaxation  of  the  common  law  was  wiselj'  applied  where 
formal  instruments  have  been  entered  into,  and  particularly  leases  under  seal, 
may  well  be  doubted ;  but  the  contrary  has  been  established  by  svich  authority, 
and  the  relations  betAveen  landlord  and  tenant  have  so  long  been  regulated 
upon  the  supposition  that  all  customary  obligations  not  altered  by  the  con- 
tract are  to  i-emain  in  force,  that  it  is  too  late  to  pursue  a  contrary  course; 
and  it  would  be  productive  of  much  inconvenience  if  this  practice  were  now 
to  be  disturbed.  The  common  law,  indeed,  does  so  little  to  prescribe  the  rela- 
tive duties  of  landlord  and  tenant,  since  it  leaves  the  latter  at  liberty  to  pur- 
sue any  course  of  management  he  pleases,  provided  he  is  not  guilty  of  waste, 
that  it  is  by  no  means  surprising  that  the  court  should  have  been  favourably 

(«)  Vide  Doe  v.  Snowden,  C.  B.  M.  contained  and  set  forth,  &c.,  is  a  cus- 
19  Geo.  3,  2  Black.  1225,  where  it  is  torn  void  in  law,  and  is  contrarj'^  to 
said  b}'  the  court,  that  if  there  is  a  and  inconsistent  with  the  said  in- 
taking  from  Old  Lady-daji- (5th  April),  denture  of  lease  in  the  said  replica- 
the  custom  of  most  countries  would  tion  mentioned."  The  case  was  ar- 
entitle  the  lessee  to  enter  upon  the  gued  at  Serjeants'  Inn,  before  the 
arable  at  Candlemas  (2nd  of  Fcbru-  Judges  of  C.  B.,  and  the  Barons  of 
ary),  to  prepare  for  the  Lent  corn,  the  Exchequer,  by  Balguy,  for  the 
Avithout  any  special  words  for  that  plaintiff  in  error,  and  Chambre  for 
purpose,  i.e.  in  a  written  agreement  the  defendant.  The  objection  to  the 
for  seven  years ;  for  the  court  were  reasonableness  of  the  custom  was 
speaking  of  such  an  agreement.  abandoned.     In  T.  21  G.,  (27th  June, 

(b)  Judgment  was   accordinly  en-  1781,)  Lord  Loughborough  delivered 

tered  for  the  plaintiff,  upon  which  a  the  unanimous  opinion  of  the  Court 

writ  of  error  was  brought  in  the  Ex-  of  Exchequer  Chamber,  that  the  cus- 

chequer  Cliamber,  and  the  defendant  tom  was  good,  and  the  judgment  was- 

assigned  for  errors,  "  that  the  custom  affirmed. 


850  WIGGLESWORTH   V.   DALLISON. 

inclined  to  the  introduction  of  those  rej^nlations  in  the  mode  of  cultivation, 
which  custom  and  usage  have  established  in  each  district  to  be  the  most 
beneficial  to  all  parties. 

"Accordingly,  in  Wir/glesioorth  v.  Z>rt//ison,  afterwards  atlh-nn-d  f>n  a  writ 
of  error,  the  tenant  was  allowed  an  away-going  crop,  tliough  there  was  a 
formal  lease  under  seal.  There  the  lease  was  entirely  silent  on  the  subject 
of  such  a  right;  and  Lord  Mansfield  said  the  custom  did  not  alter  or  contra- 
dict the  lease,  but  only  added  something  to  it. 

"The  question  subsequently  came  under  the  consideration  of  the  Court  of 
King's  Bench  in  Senior  v.  ArmUaijc,  reported  in  Mr.  Holt's  .V/.s/  Prius  Cases, 
p.  197.  In  that  case,  which  was  an  action  by  a  tenant  agahist  his  landlord 
for  a  compensation  for  seed  and  labour,  under  the  denomination  of  tenant- 
right,  Mr.  Justice  Bayley,  on  its  appearing  that  there  was  a  written  agree- 
ment between  the  parties,  nonsuited  the  plaintiff.  The  court  afterwards  set 
aside  that  nonsuit,  and  held,  as  appears  by  a  manuscript  note  of  that  learned 
Judge,  that  though  there  was  a  written  contract  between  landlord  and  tenant, 
the  custom  of  the  country  would  still  be  binding,  if  not  inconsistent  with 
the  terms  of  such  written  contract;  and  that,  not  only  all  common  obliga- 
tions, but  those  imposed  by  custom,  were  in  full  force  where  the  contract 
did  not  vary  them.  Mr.  Holt  appears  to  have  stated  the  case  too  strongly 
when  he  said  that  the  court  held  the  custom  to  be  oi)erative,  '  unless  the 
agreement  in  express  terms  excluded  it;'  and  pr()l)ably  he  has  not  been  (juite 
accurate  in  attributing  a  similar  opinion  to  tlie  Lord  Ciiief  Baron  Thompson, 
who  presided  on  the  second  trial.  It  would  appear  that  the  court  held  that 
the  custom  operated,  unless  it  could  be  collected  from  the  instrument,  either 
expressly  or  impliedly,  that  the  parties  did  not  mean  to  be  governed  by  it. 

"  On  the  second  trial,  the  Lord  Chief  Baron  Thompson  held  that  the  cus- 
tom prevailed;  although  the  written  instrument  contained  an  express  stipula- 
tion that  all  the  manure  made  on  the  farm  should  be  spent  on  it,  or  left  at 
the  end  of  the  tenancy,  without  any  compensation  being  paid.  Such  a  stipu- 
lation certainly  does  not  exclude  by  implication  the  tenant's  right  to  receive 
a  compensation  for  seed  and  labour. 

"  The  next  reported  case  on  this  subject  is  Wehh  v.  Plummer,  2  B.  &  A. 
746,  in  which  there  was  a  lease  of  down  lands,  with  a  covenant  to  spend  all 
the  produce  on  the  premises,  and  to  fold  a  flock  of  sheep  upon  the  usual 
part  of  the  farm;  and  also,  in  the  last  year  of  the  term,  to  carry  out  the 
manure  on  parts  of  the  fallowed  farm  pointed  out  by  the  lessor,  the  lessor 
paying  for  the  fallowing  land  and  carrying  out  the  dung,  but  nothing  for  the 
dung  itself,  and  paying  for  grass  on  the  ground  and  threshing  the  corn. 
The  claim  was  for  a  customary  allowance  for  foldarjc  (a  mode  of  manuring 
the  ground)  ;  but  the  court  held,  as  there  was  an  express  provision  for  some 
payment,  on  quitting,  for  the  things  covenanted  to  be  done,  and  an  omission 
of  foldage,  the  customary  obligation  to  pay  for  the  latter  was  excluded.  No 
doubt  could  exist  on  that;  the  language  in  the  lease  was  equivalent  to  a 
stipulation  that  the  lessor  should  pay  for  the  things  mentioned,  and  no  more. 

"  The  question  then  is,  whether  from  the  terms  of  the  lease  now  under 
consideration,  it  can  be  collected  that  the  parties  meant  to  exclude  customary 
allowance  for  seed  and  labour." 

In  the  case  from  which  the  above  is  extracted,  viz.,  Hiitton  v.  Warren,  1  M. 
&  W.  466,  a  custom  by  which  the  tenant,  cultivating  according  to  the  course 
of  good  husbandry,  was  entitled,  on  quitting,  to  receive  a  reasonable  allow- 
ance in  respect  of  seed  and  labour  bestowed  on  the  arable  land  in  the  last 


WIGGLESWOPvTH   V.   DALLISON.  851 

year  of  his  tenancy,  and  was  bonnrl  to  leave  the  manure  for  the  landlord,  if 
he  -would  purchase  it,  was  held  not  to  be  excluded  by  a  stipulation  in  the 
lease  that  he  would  consume  three-fourths  of  the  hay  and  straw  on  the  farm, 
and  spread  the  manure  arising  therefrom,  and  leave  such  of  it  as  should  not 
be  so  spread  on  the  land,  on  receiving  a  reasonable  price  for  it. 

From  the  above  luminous  judgment  of  Baron  Parke  it  may  be  collected, 
that  evidence  of  custom  or  usage  will  be  received  to  annex  incidents  to 
written  contracts  on  matters  witli  respect  to  which  they  are  silent. 

1st.   In  contracts  between  landlord  and  tenant. 

2nd.    In  commercial  contracts. 

3rd.  In  contracts  in  other  transactions  of  life,  in  which  known  usages 
have  been  established  and  prevailed. 

But  that  such  evidence  is  only  receivable  when  the  incident  which  it  is 
sought  to  import  into  the  contract  is  consistent  with  the  terms  of  the  written 
instrument.  If  inconsistent,  the  evidence  is  not  receivable,  and  this  incon- 
sistencj'^  maj'^  be  evinced,  — 

1st.   Bj"^  the  express  terms  of  the  written  instrument. 

2nd.  By  implication  therefrom.  [See  the  above  rules  cited  with  approval 
by  Blackburn,  J.,  in  Myers  v.  Sari,  3  E.  &  E.  306.] 

With  respect  to  the  first  class  of  cases  in  which  the  evidence  has  been 
received,  viz.,  that  of  contracts  between  landlord  and  tenant,  that  is  so 
thoroughly  discussed  in  Hntton  v.  Warren,  part  of  the  judgment  in  which  is 
above  set  out,  and  in  WiggJesvorth  v.  DalUson,  the  principal  case,  that  it 
seems  unnecessary  to  say  more  on  tliat  head  of  the  subject.  See  Holding  v. 
Pigott,  7  Bing.  465;  Boberts  v.  Barker,  1  C.  &  M.  803;  Hughes  v.  Gordon,  1 
Bligh.  287;  Clinam  v.  Cooke,  2  Sch.  &  Lef.  22;  White  v.  Sayer,  Palm.  211; 
Furley  v.  Wood,  1  Esp.  198;  Doe  v.  Benson,  4  B.  &  A.  588.  "Where  there  is  a 
custom  to  pay  for  fallows,  &c.,  and  no  incoming  tenant,  there  is  an  implied 
contract  on  the  part  of  the  landlord  to  pay  according  to  the  custom,  Faviell  v. 
Gaskoin,  7  Exch.  273.  [In  Muncey  v.  Dennis,  1  H.  &  N.  216,  a  custom  of  the 
country  binding  the  incoming  tenant  to  pay  the  outgoing  tenant  for  straw 
left  on  the  farm,  was  held  not  to  be  excluded  by  a  provision  in  the  lease  to 
the  outgoing  tenant  that  all  straw  should  during  the  term  be  consumed,  and 
the  manure  used,  on  the  premises.  In  Tucker  v.  Linger,  8  App.  Cas.  508  ;  52 
L.  J.  Ch.  941,  a  custom  for  a  tenant  to  sell  flints  turned  up  on  the  surface  of 
the  land  and  removed  in  the  course  of  good  husbandry,  was  held  a  reasona- 
ble custom,  and  one  not  inconsistent  with  the  tei'ms  of  the  lease,  which  pi'o- 
vided  that  "the  lessor  reserved,  inter  alia,  all  mines  and  minerals,  sand, 
quarries  of  stone,  brick-earth,  and  gravel-pits,  with  liberty  to  enter  to  dig, 
take,  convert,  and  carry  away  the  same,  doing  no  unnecessarj'  damage."  A 
custom  not  of  the  countr\%  but  prevalent  between  the  owner  and  tenants  of  a 
particular  landed  estate,  is  not  binding  on  a  tenant  who  becomes  such  with- 
out notice  of  its  existence:  Wo7nei'sley  v.  Dally,  26  L.  J.  Exch.  219.  As  to 
the  evidence  of  conti'act  between  the  outgoing  and  incoming  tenant  to  pay 
_  for  tillages  at  a  valuation,  and  the  right  of  the  latter  to  pay  the  amount  of 
such  valuation  to  the  landlord  for  rent  due  from  the  outgoing  tenant,  see 
Stafford  v.  Gardner,  L.  R.  7  C.  P.  242.  A  custom  making  the  incoming  tenant 
alone  liable  to  the  outgoing  tenant,  and  exempting  the  landlord  from  liability, 
though  proved  to  exist  in  fact,  Avas  held  bad  in  law  as  unreasonable.  Brad- 
burn  V.  Foley,  3  C.  P.  D.  129,  47  L.  J.  C.  P.  331.  That  a  six  months'  notice  to 
quit  must  bj^  custom  be  from  feast  day  to  feast  day  irrespective  of  the  num- 
ber of  days  intervening,  see  Morgan  v.  Davies,  3  C.  P.  D.  260.] 


g52  WIGGLESWORTH   V.    DALLISON. 

With  respect  to  contracts  commercial,  it  has  been  long  established  that 
evidence  of  a  usaxje  of  trade  applicable  to  tlie  contract,  and  whicli  the  parties 
making  it  knew,  or  may  be  reasonably  presumed  to  have  known,  is  achnissi- 
ble  for  the  purpose  of  importing  terma  into  the  contract  respecting  which  the 
vpritten  instrument  is  silent. 

[An  objection  has  been  raised  that  to  admit  evidence  of  a  usage  in  the  case 
of  a  contract  required  by  the  17th  section  of  the  Statute  of  Frauds  to  be  in 
writing  would  be  to  contravene  that  statute  by  introducing  into  the  contract  a 
term  not  included  in  the  written  memorandum  of  it.  But  the  point  was  dis- 
posed of  in  Ilumfrey  v.  Dale,  E.  B.  &  E.  1004,  and  see  Wilson  v.  Hurt,  7 
Taunt.  295. 

It  was  laid  down  in  foniier  editions  of  these  notes  that]  the  words  "  nsarje 
of  trade  "  are  to  be  understood  as  referring  to  a  particular  usage  to  be  estab- 
lished by  evidence,  and  perfectly  distinct  from  that  general  custom  of  mer- 
chants, which  is  the  universal  established  law  of  the  land,  which  is  to  be 
collected  from  decisions,  legal  principles,  and  analogies,  not  from  evidence 
in  pais,  and  the  knowledge  of  which  resides  in  the  breasts  of  the  judges. 
See  Vallejo  v.  Wheeler,  Lofft.  631 ;  Eclie  v.  E.  I.  Company,  1  Wm.  Black,  299, 
2  Burr.  121G;  [Brandao  v.  Barnett,  3  C.  B.  519,  530;  Siise  v.  Pompe,  8  C.  B. 
N.  S.  538;  Crouch  v.  CrMit  Fonder,  L.  R.  8  C.  P.  374,  42  L.  J.  Q.  B.  183;] 
sed  vide  Haille  v.  Smith,  1  B.  &  P.  503,  in  which  evidence  of  the  general  cus- 
tom of  merchants  was  received;  [and  the  remarks  of  Cockburn,  C.  J.,  in 
delivering  the  judgment  of  the  Exchecjuer  Chaml)er  in  Goodicin  v.  lioharts, 
L.  R.  10  Ex.  at  pp.  34(),  356,  44  L.  J.  Ex.  57,  157.] 

This  distinction,  indeed,  between  tlie  general  custom  of  merchants,  which 
is  part  of  the  law  of  the  realm,  and  the  particular  usages  of  certain  particu- 
lar businesses,  was  not,  it  seems,  so  clearly  marked  in  former  times  as  it  is 
now:  thus  we  find  Buller,  Justice,  saying,  2  T.  R.  p.  73,  that  "within  the 
last  thirty  years  (his  lordship  spoke  in  1787)  the  commercial  law  of  this 
country  has  taken  a  very  different  turn  from  what  it  did  before.  Before  that 
period  we  find  that,  in  courts  of  law,  all  the  evidence  in  mercantile  cases  was 
thrown  together;  they  were  left  generally  to  a  jury,  and  produced  no  estab- 
lished principle.  From  that  time  we  all  know  the  great  study  has  been  to 
find  some  certain  general  principles  which  shall  be  known  to  all  mankind ; 
not  only  to  rule  the  particular  case  then  under  consideration,  but  to  serve  as  a 
guide  for  the  future."  [The  subject  was,  however,  after  full  consideration, 
thus  dealt  with  by  Cockburn,  C.  J.,  in  delivering  the  judgment  of  the  Court 
of  Exchequer  Chamber  in  Goodvnn  v.  Robarts,  L.  R.  10  Ex.  at  p.  346,  44  L.  J. 
Ex.  162.  "It  is  true,"  says  his  lordship,  *'  that  the  law  mei'chant  is  some- 
times spoken  of  as  a  fixed  body  of  law,  forming  part  of  the  common  law, 
and,  as  it  were,  coeval  with  it.  But,  as  a  matter  of  legal  history,  this  view  is 
altogether  incorrect.  The  law  merchant  thus  spoken  of  with  reference  to 
bills  of  exchange  and  other  negotiable  securities,  though  forming  part  of  the 
general  body  of  the  lex  mercatorin,  is  of  comparatively  recent  origin.  It  is 
neither  more  nor  less  than  the  usages  of  merchants  and  traders  in  the  difler- 
ent  departments  of  trade,  ratified  by  the  decisions  of  courts  of  law,  wiiich, 
upon  such  usages  being  proved  before  them,  have  adopted  them  as  settled 
law,  with  a  view  to  the  interests  of  trade  and  the  public  convenience,  the 
court  proceeding  herein  on  the  well-known  pi'inciple  of  law  that,  with  refer- 
ence to  transactions  in  the  different  departments  of  trade,  courts  of  law,  in 
giving  effect  to  the  contracts  and  dealings  of  the  parties,  will  assume  that  the 
latter  have  dealt  with  one  another  on  the  footing  of  any  custom  or  usage 


WIGGLESWOPvTH   V.    DALLISON.  853 

prevailing  generally  in  the  particular  department.  By  this  process  what 
before  was  usage,  only  unsanctioned  by  legal  decision,  has  become  engrafted 
upon  or  incorporated  into  the  common  law,  and  may  thus  be  said  to  form 
part  of  it."  On  appeal,  the  last  cited  judgment  was  affirmed  in  the  House  of 
Lords,  1  App.  Cas.  47G,  though  the  meaning  of  the  phrase,  the  "  law  mer- 
chant," was  not  spcciallj'  adverted  to  in  the  opinions  then  delivered  by  the 
noble  loi'ds.  It  must  not  be  taken  that  when  a  usage  has  once  been  proved 
as  a  matter  of  fact,  it  is  to  be  in  all  subsequent  cases  judicially  noticed  as  a 
matter  of  law.  See  Southioell  v.  Bowditch,  in  C.  A.  1  C.  P.  D.  374,  45  L.  J.  C. 
P.  374,  630;  "  but,"  says  Lord  Justice  Mellish,  in  Ex  parte  Poicell,  1  Ch.  D. 
50G,  "  there  is  no  doubt  that  a  mercantile  custom  may  be  so  frequently  proved 
in  courts  of  common  law,  that  the  courts  will  take  judicial  notice  of  it,  and 
it  becomes  part  of  the  law  merchant."  And  accordingly  in  Craiccour  v. 
Salter,  18  Ch.  D.  53,  and  Ex  parte  Turquand,  14  Q.  B.  D.  G3G,  54  L.  J.  Q.  B. 
242,  the  C.  A.  took  judicial  notice  of  the  custom  of  hotel  keepers  to  hire  fur- 
niture so  as  to  exclude  the  operation  of  the  reputed  ownership  clause  in  the 
Bankruptcy  Act.  And  see  also  the  observations  of  Brett,  L.  J.,  Lohre  v. 
AitchUon,  3  Q.  B.  D.,  at  p.  562,  as  to  the  meaning  attached  by  often  proved 
custom  to  various  clauses  in  a  Lloyd's  policy.  At  what  peiMod  or  by  what 
process  the  transformation  takes  place  it  is  not  easy  precisely  to  determine. 
In  Alexander  v.  Vanderzee,  L.  R.  7  C.  P.  530,  followed  in  Ashford  v.  Bedford, 
L.  R.  9  C.  P.  20,  43  L.  J.  C.  P.  57,  a  question  was  left  to  the  jury  as  to  the 
mercantile  meaning  of  "  For  shipment  in  June  and  (or)  July"  apart  from  any 
usage.  See  the  former  case  commented  upon  in  Bulges  v.  Shaml,  2  App.  Cas. 
455,  46  L.  J.  Q.  B.  (H.  L.)  561.     See  also  Birch  v.  Depeyster,  4  Camp.  385.] 

With  regard  to  particular  commercial  usages,  evidence  of  them  is  admissible 
either  to  ingraft  terras  into  the  contract,  or  to  explain  its  terms. 

[In  the  first  of  these  two  classes  come  the]  cases  concerning  the  time  for 
which  the  underwriters'  liability  in  respect  of  the  goods  shall  continue  after 
the  arrival  of  the  ship.  Noble  v.  Kennaicay,  Dougl.  510,  and  see  the  observa- 
tions on  this  case  in  Ougier  v.  Jennings,  1  Camp.  503,  n. ;  Moon  v.  Gtiardians 
of  Witney  Union,  3  Binn.  N.  C.  817.  See  further  Bottomley  v.  Forbes,  5 
Bing.  N.  C.  123;  Vallance  v.  Deicar,  1  Camp.  403,  et  notas ;  Cochran  v. 
Retbiiry,  3  Esp.  121;  Birch  v.  Depeyster,  1  Stark.  210;  4  Camp.  385;  Don- 
aldson V.  Forster,  Abb.  on  Shipp.  part  3,  cap.  1 ;  Baker  v.  Payne,  1  Ves.  jun. 
459;  Raitt  v.  Mitchell,  4  Camp.  146;  Lethulier's  Case,  2  Salk.  443 ;  Bowman 
V.  Horsey,  2  M.  &  Rob.  85 ;   [Allan  v.  Sundius,  1  H.  &  C.  123. 

And  as  to  evidence  of  a  usage  not  to  pay  general  average  on  deck  cargo, 
see  Miller  v.  Titherington,  6  H.  &  N.  278 ;  nor  for  damage  caused  by  water 
used  to  extinguish  a  fire,  Stewart  v.  West  India  and  Pacific  Steamship  Co., 
L.  R.  8  Q.  B.  88,  362,  a  usage  which  since  this  decision  has,  it  is  believed, 
ceased  to  obtain ;  to  pay  freight  according  to  the  measurement  at  the  port  of 
loading:  Buckle  v.  Knoop,  L.  R.  2  Ex.  125,  36  L.  J.  Ex.  49;  for  general 
steamships  unloading  in  the  London  Docks  to  unload  their  cargoes  on  the 
quay:  Marzelti  v.  Smith,  1  Cab.  &  El.  6.  See  also  as  to  the  various  rules 
which  have  been  imported  into  the  contract  by  a  policy  of  marine  insurance, 
Lohre  v.  Aitchison,  3  Q.  B.  D.  558;  Knight  v.  Cuteswnrth,  1  Cab.  &  El.  48.] 

In  Broion  v.  Byrne,  3  E.  &  B.  703,  a  case  very  elaborately  argued  at  the  bar, 
a  bill  of  lading  which  made  the  goods  deliverable  at  Liverpool  to  order  or 
assigns,  "  he  or  they  paying  freight  for  the  said  goods  five-eighths  of  a  penny 
per  pound,  with  5  per  cent  primage  and  average  accustomed,"  was  held  not 
to  exclude  the  operation  of  a  custom  in  the  trade  at  Liverpool,  by  which  three 


854  WIGGLESWORTH   V.   DALLISON. 

months'  discount  was  deducted  from  I)iU  of  hiding  freii;lits  of  goods  coming 
from,  amongst  otliers,  tlie  port  of  sliipment.  In  tlie  niarginid  note,  tlie  court 
are  said  to  liave  held  tliat  tiiis  custom  controlled  the  bill  of  lading;  perliaps 
it  would  be  better  to  liave  said  that  ft  was  not  inconsistent  with  it.  [See  per 
Lord  Campbell  in  Hall  v.  Janson,  4  E.  &  B.  510;  and  C'uthbert  v.  Cumming, 
10  Exch.  809;  aflirmed  in  11  Exch.  405.  See  also  Falknerv.  Earle,  32  L.  J. 
Q.  B.  124,  where  Brown  v.  B>jrne  was  followed. 

Evidence  has  been  held  admissible  of  a  custom  in  the  iron  trade  that  a 
manufacturer  contracting  to  supply  iron  plates  must  supply  them  of  his  own 
manufacture:  see  Johnson  v.  liai/Hon,  7  Q.  B.  D.  438,  50  L.  J.  Q.  B.  753. 

In  Merchant  Bctnldng  Co.  v.  Pha'nix  Bessimer  Steel  Co.,  5  Ch.  D.  205,  40  L.  J. 
Ch.  D.  418,  a  custom  was  upheld  whereby,  in  the  iron  trade,  where  warrants 
were  given  stating  on  the  face  of  them  that  they  were  deliveraljle  to  the 
purchasers  or  their  assigns,  by  indorsement  thereon,  it  was  understood  that 
they  were  to  be  free  from  any  vendor's  lien  for  unpaid  pui-chasc-money,  that 
they  passed  from  hand  to  hand  by  indorsement,  and  conveyed  to  the  holder  a 
title  to  the  goods  represented  by  them. 

In  Field  v.  Lelean,  Exch.  Cham.  G  II.  &  N.  G17,  30  L.  J.  Exch.  108,  evidence 
of  a  usage  amongst  brokers  that  on  the  sales  of  mining  shares  the  seller  is 
not  bound  to  deliver  without  contemporaneous  payment,  was  held  admissible 
to  show  that  the  defendant  was  not  entitled  to  have  the  shares  which  he  had 
bought  from  the  plaintiff  delivered  to  him  before  payment,  although  by  the 
bought  and  sold  notes  payment  of  the  price  was  to  be  made,  lialf  in  two, 
half  in  four  months,  and  nothing  was  there  said  as  to  the  time  of  delivery. 
This  case  is  a  strong  one,  but  it  can  be  questioned  in  Dora.  Proc.  only.  Upon 
the  question  whether  it  overrules  Spartali  v.  Benecke,  10  C.  B.  212,  see  the 
judgment  of  "Williams,  J.,  in  Field  v.  Lelean.  See  also  Godls  v.  Rose,  17  C. 
B.  229.] 

And  as  to  evidence  of  a  usage  to  pay  an  agent.  Hutch  v.  Carrington,  5  C.  & 
P.  471 ;  for  a  factor  to  sell  in  his  own  name,  Johnstone  v.  Ushorne,  11  A.  &  E. 
449;  [for  a  broker  employed  to  buy  to  make  himself  personally  responsible 
for  the  price,  Cropper  v.  Cook,  L.  R.  3  C.  P.  194 ;  for  a  J)roker  employed  to 
purchase  to  become  a  seller  in  the  transaction  without  the  knowledge  of  his 
employer,  Robinson  v.  MoUett,  L.  R.  7  II.  L.  802,  44  L.  J.  C.  P.  302 ;  or  to  buy 
without  making  a  binding  contract  of  purchase  on  his  employer's  behalf,  Ih. ; 
as  to  an  introducing  broker's  rights  to  subsequent  commissions,  Allan  v.  Sun- 
dins,  1  H.  &  C.  123;  Gibson  v.  Crick,  lb.  142.  In  Raines  v.  Fifing,  L.  II.  1  Ex. 
329,  35  L.  J.  Ex.  194,  it  was  held,  that  the  presumption  which  would  have 
arisen  of  an  insurance  bi-oker's  authority  to  underwrite  generalhj  for  the 
defendant  at  Liverpool,  was  rebutted  by  the  custom  proved  to  exist  at 
Liverpool,  by  which  an  assurance  broker's  authority  to  underwrite  is  always, 
or  nearly  always,  limited  to  a  certain  sum.  And,  therefore,  where  the 
defendant's  broker  had  taken  a  risk  in  excess  of  his  authoi'ity,  the  defendant 
was  held  not  liable  as  principal  on  the  contract  although  the  plaintiff,  the 
assured,  had  not  been  aware  that  the  broker  had  exceeded  his  limit. 

In  Hum/re]!  v.  Dale,  7  E.  &  B.  266,  in  error,  E.  B.  &  E.  1004,  it  should  seem 
that  not  merely  a  term  but  a  parttj,  was  on  oral  evidence  of  a  custom  added 
to  a  contract  in  writing.  The  action  was  against  Dale,  Morgan,  &  Co., 
brokers,  for  not  accepting  ten  tons  of  oil  alleged  in  the  declaration  to  have 
been  sold  to  them  by  the  plaintiff,  and  it  was  held  to  be  maintainable,  first  by 
the  Q.  B.  and  afterwards  in  C.  S.,  Martin,  B.,  Willes,  J.,  and  Channell,  B., 
dissenting.     These   were   the   facts:   The  plaintiff  had  employed  T.  &  M., 


WIGGLESWOETH    Y.    DALLISON.  855 

brokers,  to  sell  the  oil  for  him,  and  one  Schenk  employed  the  defendants  to 
Jjxiy  it.  The  brokers  met,  and  the  sale  was  effected,  but  the  only  written 
documents  which  could  be  produced  as  evidence  of  it  were,  first,  a  sale  note 
of  the  oil,  signed  by  tlie  defendants,  which  commenced  thus,  "  Sold  this  day 
for  Jlessrs.  T.  &  M.  to  our  'principals  "  and  ended  with  tlie  signature,  *'  Dale, 
Morgan,  &  Co.,  brokers,"  and  "  a  quarter  per  cent,  brokerage  to  D.,  M.,  &  Co. ;  " 
secondly,  a  sale  note  signed  by  T.  &  M.,  "  brokers,"  and  which  commenced 
thus:  "Sold  to  Dale,  Morffan,  cC  Co.,  for  account  of  Mr.  Humfrey"  (the 
plaintiff),  and  ended  with  the  clause,  "  quarter  per  cent,  brokerage  to  D.,  M., 
&  Co.,  half  to  us."  The  first  of  these  notes  was  sent  by  the  defendants  to  T. 
&  ]\r.,  the  second  by  T.  &  M.  to  the  plaintiff.  There  was  evidence  of  usage  of 
the  particular  trade  that  whenever  a  broker  buys  or  sells  witliout  disclosing 
his  principal,  he  is  himself  personall3-  liable  to  be  looked  to  as  buyer  or  seller, 
and  that  it  was  in  accordance  with  the  usual  practice  in  such  cases,  that  T. 
&  i\I.  liad  not  sent  the  defendants  a  note  of  the  contract.  The  defendants 
did  not  disclose  4heir  principal  till  an  unreasonable  time  after  the  contract 
made,  nor  until  after  tender  of  the  oil  and  after  he  had  become  insolvent. 

The  court  of  Q.  B.  held  the  evidence  of  usage  to  be  admissiljle.  They 
considered  tliat  b3'  necessary  implication  the  defendants  had  in  the  first  note 
said  that  they  had  houfjht  for  their  principals,  and  though  the}^  said  they  had 
sold  for  T.  &  M.  the  plaintiff  had  shown,  as  he  miglit,  that  T.  &  M.  were  only 
his  agents.  The  court  then  proceeded  to  sa,v  that  "  the  plaintiff  did  not  seek, 
by  the  evidence  of  usage,  to  contradict  what  the  tenor  of  the  note  primarily 
imported,  namely,  that  this  was  a  contract  which  the  defendants  made  as 
lirokers.  The  evidence  indeed  is  based  on  this  :  the  usage  can  have  no  opera- 
tion except  on  the  assumption  of  their  having  so  acted,  and  of  there  having 
been  a  contract  made  with  their  principal.  But  the  plaintiff,  by  the  evidence, 
seeks  to  show  that  according  to  the  usage  of  the  trade,  and  as  those  con- 
cerned in  the  trade'understand  the  words  used,  they  import  something  more ; 
namely,  that  if  the  buying  broker  did  not  disclose  the  name  of  his  principal 
it  might  become  a  contract  with  him  if  the  seller  pleased.  Supposing  this 
incident  had  been  expressed  on  the  face  of  the  note,  there  would  have  been 
no  objection  to  it,  as  affecting  the  validity  of  the  contract;  for  the  effect  of 
it  would  only  have  been  that  the  sale  might  be  treated  bj'  the  vendor  as  a  sale 
to  the  broker,  unless  he  disclosed  the  name  of  his  principal;  if  he  did  that, 
it  remained  a  sale  to  the  principal,  assuming  of  course,  the  broker's  authority 
to  bind  him." 

The  court  admitted  that  in  one  sense  the  evidence  varied  the  contract.  "  In 
a  certain  sense  every  material  incident  which  is  added  to  a  written  conti'act 
varies  it,  makes  it  different  from  what  it  appeared  to  be,  and  so  far  is  incon- 
sistent with  it.  If  by  the  side  of  the  written  contract  icithout,  you  write  the 
same  contract  icilh  the  added  incident,  the  two  would  seem  to  import  different 
obligations  and  be  different  contracts.  The  truth  is,  that  the  principle  on 
which  the  evidence  is  admissible  is  that  the  parties  have  not  set  down  on 
paper  the  whole  of  their  contract  in  all  its  terras,  but  those  onhj  tchich  were 
•necessary  to  be  determined  in  the  particular  case  by  specific  agreement,  and 
whicli  of  course  might  vary  infinitely,  leaving  to  implication  and  tacit  under- 
standing all  those  general  and  varying  incidents  which  i  uniform  usage 
would  annex,  and  according  to  which  they  must  in  reason  be  understood  to 
contract,  unless  they  expressly  exclude  them." 

It  is  perhaps  to  be  regretted  that  this  judgment  was  not  taken  up  to  the 
House  of  Lords.      But  it  has  been  constantlj'  acted  upon,  and  seems  now  to 


856  WIGGLESWORTH   V.    DALLISON. 

be  firmly  established,  though  the  iisage  must,  iu  each  case,  be  proved,  South- 
well V.  Boioditrh,  1  C.  P.  Y>.  374,  45  L.  J.  C.  P.  374,  030. 

Fleet  V.  Murtnn,  L.  R.  7  Q.  B.  120;  41  L.  J.  Q.  B.  49,  was  a  very  simihir 
case  to  Ilnnifreij  \.  Dale.  See  also  Imperial  Bank  v.  London  and  St.  Kmlt. 
Docks  Co.,  5  Ch.  D.  195,  40  L.  J.  Cli.  3:55,  and  Bacmeister  v.  Fenton,  Lcvij  and 
Co.,  1  Cab.  &E1.  121. 

That  of  Hutchinson  v.  Tatham,  L.  R.  8  C.  P.  482,  42  L.  J.  C.  P.  200,  seems 
a  still  stronger  one.  There  the  defendant,  acting  as  agent  for  one  Lyons 
with  due  authority  to  do  so,  effected  a  charter-party,  which  was  expressed  in 
the  body  of  it  to  be  made  between  the  plaintifl"  who  was  a  shipowner,  and  the 
defendant  as  "agent  to  merchants."  The  defendant  signed  "as  agent  to 
merchants."  The  court  admitting  that  but  for  the  custom  the  defendant 
would  not  have  been  personally  liable  on  the  charter,  held  on  the  authority  of 
the  two  last  cited  cases  tiiat  evidence  was  admissible  of  a  usage  to  make  him 
so  liable  if  he  did  not  disclose  his  principal's  name  within  a  rcasonal)le  time. 

In  Wildy  v.  Stephenson,  1  Cab.  &  Kl.  3,  it  was  endeavoured  to  prove  a  cu.s- 
tom  on  the  London  Stock  Exchange  that  a  broker  was  personally  lial)le  to 
his  employer  on  a  contract  for  the  sale  of  shares  where  the  name  of  tlie 
principal  was  not  disclosed,  but  the  jury  were  unable  to  agree  as  to  the  exist- 
ence of  such  a  custom. 

A  variety  of  questions  have  been  raised  of  late  years,  giving  rise  to  no 
small  diversity  of  judicial  opinion,  as  to  how  far  members  of  the  Stock 
Exchange  can  avail  themselves  of  its  usages  to  relieve  themselves  of  liability 
upon  contracts  made  there.  In  Grissell  v.  Bristoice,  L.  R.  4  C.  P.  30,  38  L.  J. 
C.  P.  10,  the  Court  of  Exchequer  Chamber,  reversing  the  decision  of  the 
Court  of  Common  Pleas,  upheld  a  custom  of  the  Stock  Exchange  whereby  a 
stock  jobber  who  had  purchased  sliares  from  one  of  the  pul)lic  through  a 
stock  broker  on  the  Stock  Exchange,  was  relieved  from  liability  to  take  the 
shares  and  indemnify  the  vendor  against  calls  if  he  gave  the  name  and  address 
of  a  nominee  able  and  willing  to  take  the  .shares  to  whom  they  were  to  be 
transferred,  and  such  nominee  was  not  objected  to  within  ten  days  after  the 
name  was  given.  A  similar  decision  was  given  by  a  court  of  equity  :  Coles  v. 
Bristov-e,  L.  R.  4  Ch.  3,  38  L.  J.  Ch.  81.  And  the  like  was  held  to  be  the  case 
where  the  names,  thougii  given  bond  fide  by  the  jobber,  were  those  merely  of 
men  of  straw  put  forward  to  shield  the  real  purcliaser :  Maxted  v.  Paine,  l»fo. 
2,  L.  R.  0  Ex.  132,  40  L.  J.  Ex.  57,  diss.  Cleasby,  B.,  and  Lush,  J.  A  con- 
tract, it  would  seem,  then  arises  l^etween  the  vendor  and  the  nominee,  by 
which  the  latter  is  bound  to  indemnify  the  former  against  calls  in  respect  of 
the  shares  so  sold :  Boioring  v.  Shej^herd,  L.  R.  6  Q.  B.  309,  40  L.  J.  Q.  B.  129 ; 
Mckalls  V.  ^ferry,  L.  R.  7  H.  L.  530,  733,  45  L.  J.  Ch.  575  :  but  see  per  Black- 
burn, J.,  in  Maxted  v.  Paine,  No.  2,  nbi  sjip.  It  may  be  observed  that  both  in 
Grissell  v.  Bristowe,  and  in  Bowring  v.  Shepherd  the  transfers  had  in  fact 
been  accepted  and  the  price  of  the  shares  had  been  paid  by  the  transferees' 
brokers  though  the  transfers  were  not  executed  by  the  transferees.  The 
vendor  has  also  (at  any  rate  in  equity)  a  right  to  be  indemnified  by  the  real 
purchaser,  who  has  through  his  broker  supplied  the  man  of  straw  to  the  job- 
ber, and  through  him  to  the  vendor  as  transferee.  Castellan  v.  Ilohson,  L.  R. 
10  Eq.  47,  39  L.  J.  Ch.  490.  The  jobber,  however,  is  not  discharged  by  the 
custom  where  the  name  given  Is  of  one  who  has  not  authorised  the  use  of  it. 
Maxted  v.  Paine,  No.  1,  L.  R.  4  Ex.  81,  38  L.  J.  Ex.  4i  ;  or  is  under  disability 
to  contract —  as  an  infant,  Mckalls  v.  Merry,  ubi  sup. 

The  second  subdivision  above-named  of  cases  in  which  evidence  of  com- 


"WIGGLESAVORTH   Y.    DALLISON.  g57 

mercial  usages  is  receivable,  is  wliere  it  is  admitted  to  explain  the  tenns  of  a 
contract,]  as  was  done  in  Udhe  v.  Walters,  3  Camp.  IG,  by  showing  that  the 
Gulf  of  Finland,  though  not  so  treated  by  geographers,  is  considered  by 
mercantile  men  part  of  the  Baltic;  and  in  Hutchinson  v.  Boivker,  5  M.  &  W. 
535,  wliere  it  was  proved  that  good  barley  and  Jine  barley  signified  in  mercan- 
tile usage  different  things.  See  further  Bohertson  v.  Clarke,  1  Bing.  445; 
Moxon  V.  Atkins,  3  Camp.  200;  Cochran  v.  Rcthery,  3  Esp.  121 ;  Chaurand  v. 
Anfjerstrin,  Tcake,  Gl ;  Bold  v.  Bayner,  1  M.  &  W.  44G;  Bowell  v.  Horton,  2 
Bing.  N.  C.  GGS. 

And  as  to  evidence,  that  "  sold  18  pockets  Kent  hops  at  100s."  means  in  the 
hop  trade  100s.  per  cwt.,  Spicer  v.  Cooper,  1  Q.  B.  424;  that  "  in  turn  to 
deliver."'  in  a  charter-party  to  Algiers  means  at  a  particular  spot  in  the  port 
for  a  particular  purpose,  Bohertson  v.  Jackson,  2  C.  B.  412;  [(as  to  the  term 
"to  load  in  regular  turn,"  see  Hudson  v.  Clementson,  18  C.  B.  213;  Lawson 
V.  Burness,  1  H.  &  C.  396;  Leideman  v.  Schxiltze,  14  C.  B.  38;  Kin(j  v.  Hinde, 
12  L.  K.  Ir.  113) ;  of  the  meaning  of  "  Liverpool "  in  a  charter-party  as  a  port 
of  arrival,  Norden  Steam  Co.  v.  Dempsey,  1  C.  P.  D.  654,  45  L.  J.  C.  P.  764; 
of  "  no  St.  Lawrence"  in  a  policy  of  in.surance,  Birrell  v.  Dryer,  9  App.  Cas. 
345;  of  "  running  days"  iu  a  charter-party,  Neilsen  v.  Wail,  IG  Q.  B.  D.  67; 
that  "bale"  in  the  Gambler  trade  means  a  compressed  package,  weighing  on 
the  average  two  cwt.,  Gorrisen  v.  Perrin,  2  C.  B.  N.  S.  681 ;  that  oil  is  "  wet" 
if  it  contains  any  water,  however  little,  Warde  v.  Stewart,  I  C.  B.  N.  S.  88;] 
to  show  the  meaning  of  the  description  "about"  so  many  quarters  in  a 
delivery  order,  ^foore  v.  Campbell,  10  Exch.  323;  [and  "  about"  so  many  bar- 
rels in  a  charter-party,  Alcock  v.  Leuw  &  Co.,  1  Cab.  &  El.  98]  ;  to  explain 
the  sense  in  which  the  word  "  London"  was  employed,  Mallan  v.  May,  13  M. 
&  W.  511 ;  [that  a  "  full  and  complete"  cargo  of  sugar  and  molasses  means 
at  Trinidad  a  cargo  packed  in  the  ordinary  way  there;  Cuthbert  v.  Cumming, 
10  Ex.  809,  affirmed  11  Ex.  405;  the  meaning  of  "  the  next  two  months"  in 
the  iron  trade,  Bissell  v.  Beard,  28  L.  T.  N.  S.  740. 

A  question  has  sometimes  been  raised  as  to  how  far  it  is  necessary  in  order 
to  att'ect  a  person  with  the  usage  of  a  trade  or  market  that  he  should  be 
actually  cognisant  of  it. 

It  was  said  in  a  case  before  the  judicial  committee,  Kirchner  v.  Venus,  12 
Moore,  P.  C.  361,  that  when  evidence  of  the  usage  of  a  particular  place  is 
admitted  to  add  to  or  in  any  manner  to  affect  the  construction  of  a  written 
contract,  it  is  only  on  the  ground  that  the  parties  ivho  made  the  contract  are 
both  cognisant  of  the  usage,  and  must  be  presumed  to  have  made  their  agree- 
ment with  reference  to  it,  and  that  no  such  presumption  can  arise  Avhen  one 
of  the  parties  is  ignorant  of  it.  And  that  is  adopted  in  the  marginal  note  as 
the  statement  of  a  general  rule  of  law.  It  should  seem,  however,  that  the 
proposition  must  be  restrained  to  subject  matters  like  that  before  the  court, 
namely,  the  condition  of  the  holder  for  value  of  a  negotiable  instrument 
showing  upon  the  face  of  it  a  clear  right  of  the  ordinary  and  usual  kind 
unaflected  by  the  custom ;  and  the  subsequent  part  of  the  judgment  dwelt 
upon  the  special  circumstances  as  being  important.  In  Kirchner  v.  Venus, 
the  indorsees  resident  in  Sydney,  of  bills  of  lading,  made  in  Liverpool,  for 
the  carriage  of  goods  from  Liverpool  by  the  ship  "  Countess  of  Elgin,"  to 
Sydney,  were,  in  an  action  of  trover  by  them  against  the  master  of  the  ship 
for  having  refused  to  deliver  up  the  goods  at  Sydney  unless  paid  freight, 
held  not  to  be  bound  ])y  an  alleged  custom  in  Liverpool,  of  which  the  plaintiffs 
were  ignorant,  that  though  by  the  terms  of  the  bills  the  freight  was  payable 


858  WIGGLESWOIITII    V.    DALLISON. 

in  Liverpool  at  a  certain  time  after  sailing,  still  the  ship-owner,  if  it  was  not 
paid,  liad  a  lien  for  it  at  tl»e  i)()rt  of  ilischarge.  Sec  some  reniarlcs  on  tliis 
case  in  Buckle  v.  Knoop,  L.  U.  2  Ex.  V*'>,  pi:r  Kelly,  C.  B. ;  and  see  Ilathising 
V.  Lainij,  L.  11.  17  Eq.  02,  -l.'i  L.  J.  Ch.  233,  and  Norden  Stram  Co.  v.  Diinpsey, 
1  C.  r.  D.  002 ;  45  L.  J.  C.  P.  704,  per  Brett,  J.] 

In  Sutton  V.  Tatham,  10  A.  &  E.  27,  it  was  laid  down  tliat  a  [lerson  employ- 
ing a  broker  on  the  Stock  Exchange,  inipliedly  gives  him  authority  to  act  in 
accordance  with  the  rules  there  established,  though  the  principal  l)e  himself 
ignorant  of  them.  And  in  BayJiffe  v.  Butterworth,  1  Exch.  425,  Sutton  v. 
Tatham  Avas  expressly  approved  of  by  Parke,  B.,  and  llolfe,  B. ;  and  Alder- 
son,  B.,  laid  down  the  law  generally,  that  "  a  person  who  deals  in  a  particular 
market  must  be  taken  to  deal  accoriling  to  the  custom  of  that  market,  and 
he  who  directs  anotlier  to  make  a  contract  at  a  particular  place  must  be  taken 
as  intending  that  tlie  contract  may  be  made  according  to  the  usage  of  that 
place."  And  Parke,  B.,  distinguished  the  cases  of  Gabnij  v.  Llnijd,  3  B.  &  C. 
793,  and  Barthtt  v.  Pentlund,  10  B.  &  C.  760,  in  wiiich  the  usage  of  Lloyd's 
Coffee-house  was  held  not  to  be  binding  on  persons  who  were  not  shown  to 
have  been  cognizant  of,  or  to  have  assented  to  it,  on  the  ground  that  in  Ba>j- 
liffe  v.  Butterworth,  the  (luestion  was  as  to  the  author itij  which  the  broker 
received.  [See,  however,  as  to  this  distinction  per  Williams,  J.,  in  Sweetiny 
v.  Pearce,  7  C.  B.  N.  S.  482. 

In  the  latter  case,  allirmed  9  C.  B.  X.  S.  534,  30  L.  J.  C.  P.  10'.),  tiie  i)rinci- 
pal  was  held  not  liound  by  a  usage  of  Lloyd's  of  which  he  was  ignorant,  but 
principally  on  the  ground  that  Lloyd's  is  a  mere  private  place  of  l)usiness  and 
not  a  general  market  so  as  to  come  within  the  above  rule.  See  per  Bovill, 
C.  J.,  Grissell  v.  Bristoice,  L.  R.  3  C.  P.  127.  But  the  court  seem  to  have  gone 
also  upon  the  ground  that  the  usage  sought  to  be  established  would,  if  not 
known  to  the  principal,  be  an  unreasonable  one,  (see  the  judgment  of  Brara- 
well,  B.,  in  Cam.  Scacc.,)  following  in  this  respect  the  decision  in  Scott  v. 
Irving,  1  B.  &  Ad.  012,  that  a  usage  whicli  would  have  the  effect  of  making 
the  broker  and  not  the  underwriter  tlie  delator  of  tiie  assured  for  a  loss  on  a 
policy  of  insurance,  can  only  bind  those  who  are  acquainted  with  it.  See 
also  per  Fry,  J.,  Pearson  v.  Scott,  9  Ch.  D.  198,  47  L.  J.  Ch.  725,  where  an 
alleged  custom  of  the  Stock  Exchange  was  held  bad,  whereby  it  was  con- 
tended that  a  broker  employed  by  a  solicitor  whom  he  knew  to  be  an  agent 
could  settle  in  account  with  such  solicitor  (otherwise  than  by  payment)  be- 
hind the  back  of  the  principal.  As  will  be  presently  stated  more  fully  a  cus- 
tom if  unreasonable  is  not  binding ;  and  the  knowledge  of  the  person  to  be 
bound  may  be  an  important  element  in  deciding  whether  a  custom  is  reason- 
able or  not.     See  per  Bowen,  L.  J.,  in  Perry  v.  Barnett,  15  Q.  B.  D.  at  p.  397. 

In  Robmson  v.  MoUett  in  Dom.  Proc,  L.  R.  7  H.  L.  836,  838,  Lord  Chelms- 
ford, L.  J.,  states  the  rule  to  be  that  "  if  a  person  employs  a  broker  to 
transact  for  him  upon  a  market  with  the  usages  of  Avhich  the  principal  is 
unacquainted,  he  gives  authority  to  the  broker  to  make  contracts  upon  the 
footing  of  such  usages,  provided  they  are  such  as  regulate  the  mode  of  per- 
forming the  contracts,  and  do  not  change  their  intrinsic  character."  In  that 
case  his  lordship  "hesitated  to  say  that  the  usage  in  question  would  not 
apply  in  the  case  of  persons  knowing  of  its  existence,  and  employing  a 
broker  to  act  for  them  in  the  market  where  it  prevailed.  But  the  usage  was 
of  such  a  peculiar  character,  and  so  completely  at  variance  with  the  relations 
between  the  parties,  converting  a  broker  employed  to  buy  into  a  principal 
selling  for  himself,  and  thereby  giving  him  an  interest  wholly  opposed  to  his 


WIGGLESWORTH   V.    DALLTSON".  859 

duty,  that  he  thought  no  person  who  was  ignorant  of  such  an  usage  could  be 
held  to  have  agreed  to  submit  to  its  condition,  merely  by  employing  the  ser- 
vices of  a  broker  to  whom  the  usage  was  known  to  perform  the  ordinary 
and  accustomed  duties  belonging  to  such  employment." 

Subject  to  the  above  qualilication,  and  to  the  custom  not  being  unreason- 
able or  otherwise  objectionable  in  point  of  law,  the  I'ule  above  cited  and  laid 
down  in  Sutton  v.  Tatham,  and  Bityliffe  v.  Battencorth,  has  been  constantly 
adopted  and  followed.  See  Stewart  y.  Aherdein,  4  M.  &  W.  211;  Taylor  v. 
Stray,  2  C.  B.  N.  S.  175;  Stray  v.  Bussell,  1  E.  &  E.  888,  29  L.  J.  Q.  B.  115; 
Greaves  v.  Leyrje,  2  H.  &  N.  216;  Lloyd  v.  Gtiibert,  35  L.  J.  Q.  B.  per  curiam; 
Grissell  v.  Bristowe,  L.  R.  4  C.  P.  3G;  38  L.  J.  C.  P.  10;  Duncan  v.  Hill,  L.  R. 
8  Ex.  242,  42  L.  J.  Ex.  179.  In  the  latter  case  the  plaintiffs,  who  wei-e  stock 
brokers  on  the  London  Stock  Exchange,  had  been  employed  by  the  defendant, 
a  non-member,  to  carry  over  certain  stocks  and  shares  from  one  settling  day 
to  a  later  one.  In  the  interval  between  the  two  days  the  plaintiffs  became 
defaulters,  whereupon,  accox'ding  to  the  rules  of  the  Stock  Exchange,  their 
transactions  were  closed,  and  their  accounts,  including  that  of  the  defendant, 
were  made  up  at  the  prices  current  on  that  day,  without  any  communication 
with  the  defendant.  It  was  held,  in  the  Cam.  Scacc,  reversing  the  decision 
of  the  Court  of  Exchequer,  that  the  defendant  was  not  liable  to  indemnify 
the  plaintiffs  for  the  "  difference  "  or  loss  caused  by  the  closing  of  his  account, 
which  had  been  forced  on  by  the  rules  of  the  Stock  Exchange,  inasmuch  as 
this  had  been  caused  by  the  plaintiff's  own  default.] 

In  Stev:art  v.  Canty,  8  M.  &  \V.  160,  a  rule  of  the  Liverpool  Stock  Exchange 
was  admitted  in  evidence  between  parties  not  members  of  it,  upon  a  question 
what  was  a  reasonable  time  for  the  completion  of  a  sale  of  shares  made  at 
Liverpool  through  the  agency  of  brokers. 

[To  come  to  cases]  not  falling  within  the  head  of  mercantile  contracts, 
evidence  has  been  received  to  show  that  by  the  custom  of  a  particular  dis- 
trict the  words  "  1000  rabbits"  meant  1200  rabbits,  Smith  v.  Wilson,  3  B.  & 
Ad.  728 ;  and  see  Clayton  v.  Gregson,  5  A.  &  E.  302.  So  in  Reg.  v.  Stoke-iipon- 
Trent,  5  Q.  B.  303,  an  agreement  in  writing  "  to  serve  B.  from  II  Nov.,  1815, 
to  11  Nov.,  1817,"  at  certain  wages,  "  to  lose  no  time  on  our  own  account, 
to  do  our  work  well,  and  behave  ourselves  in  every  respect  as  good  servants," 
was  considered  capable  of  explanation  by  a  usage  in  the  particular  trade  for 
servants,  under  similar  contracts,  to  have  certain  holidays  and  Sundays  to 
themselves.  See  Phillips  v.  Lines,  4  CI.  &  Fin.  234.  Also  in  Grant  v.  ^[ad- 
dox,  15  jNI.  &  W.  737,  an  agreement  b}'^  the  manager  of  a  theatre  to  engage  an 
actress  for  "  three  years,  at  a  salary  of  5Z.,  6?.,  and  11.  per  week  in  those 
j'ears  respectively,"  was  explained  by  the  usage  of  the  theatrical  profession 
to  mean  that  the  actress  was  to  be  paid  only  whilst  the  theatre  was  open  for 
performance.  [In  Parker  v.  Ihhetson,  4  C.  B.  N.  S.  346,  a  custom  that  the 
yearly  hiring  of  a  clerk  is  determinable  by  a  month's  notice  at  any  time,  was 
held  not  inconsistent  with  a  prpvision  in  the  agreement,  that  at  the  end  of 
the  year  the  employer,  if  satisfied  with  the  amount  of  business  done,  would 
make  an  addition  of  30/.  to  the  stipulated  salary.]  So,  again,  in  Evans  v. 
Pratt,  3  M.  &  G.  759 ;  4  Scott,  N.  R.  370,  S.  C,  in  a  memorandum  as  to  a  race, 
the  run  described  was  "  four  miles  across  a  country,"  and  evidence  was 
admitted  to  show  that  in  sporting  parlance  the  meaning  of  those  words  is 
straight  across  over  all  obstructions  without  liberty  to  go  through  open  gates. 
So  if  A.  and  B.  were  to  agree  for  a  lease,  it  would  be  implied  fi-om  custom 
that  the  lessor  should  prepare  and  the  lessee  pay  for  it.     Grissell  v.  Robinson, 


860  WIGGLESWOETH    V.    DALLISON. 

3  Bing.  N.  C.  11.  Although  in  general,  upon  a  sale  of  property,  the  vendee 
who  is  to  bear  the  expense  of  the  conveyance  ought  to  prepare  it.  Prire  v. 
Williams,  1  M.  &  W.  G;  Poole  v.  IJill,  G  M.  &  W.  835;   Stephens  v.  De  Medina, 

4  Q.  B.  422.  See,  however,  Doe  cl.  Clarke  v.  Stilxcell,  8  A.  &  E.  645.  [As  to 
the  liability  by  usage  of  a  man  about  to  marry  to  pay  his  wife's  solicitor  for 
preparing  her  marriage  settlement,  see  Helps  v.  Clapton,  17  C.  B.  X.  S.  553, 
34  L.  J.  C.  P.  1. 

In  The  North  Staffordshire  Rail.  Co.  v.  Peek,  E.  B.  &  E.  98G,  the  majority  of 
the  court  held  that  the  terms  in  a  letter  to  carriers  from  their  customer, 
"  Please  send  the  marl)les  not  insured,"  were  to  be  read  "according  to  the 
understanding  of  language  between  carriers  and  tlieir  customers,"  and  con- 
strued as  a  reciuest  to  carry  the  mari)les  at  the  customer's  rislv.  But  tliis 
decision  turned  upon  the  construction  of  a  statute,  and  was  reversed  in  the 
House  of  Lords,  10  H.  of  L.  Ca.  473,  32  L.  J.  Q.  15.  241. 

As  to  a  usage  of  trade  to  allow  goods  to  remain  witli  hotel-keepers  on  hire, 
preventing  such  goods  from  being  affected  l)y  the  order  and  disposition  sec- 
tion of  the  Bankruptcy  Acts,  see  in  re  Blanshard,  8  Ch.  D.  GOl,  and  the  cases 
therein  cited ;  Craiccour  v.  Salter,  18  Ch.  D.  53;  ex  parte  Brooks,  23  Ch.  D. 
261;  ex  parte  Turquand,  14  Q.  B.  D.  636,  54  L.  J.  Q.  B.  242. 

Whilst,  however,  as  we  have  seen,  evidence  of  custom  has  been  very 
largely  admitted,  tliere  are  numerous  cases  in  which  such  evidence  is  inad- 
missible, and  tliese  will  now  be  dealt  witli. 

Thus]  the  admissibility  of  evidence  of  custom  to  explain  tlie  meaning  of 
a  word  used  in  any  contract  wluitever,  is  subject  to  tliis  (pKUilication,  ?'i.?., 
tliat  if  an  act  of  parliament  have  given  a  definite  meaning  to  any  jiarticular 
Avord  denoting  weight,  measure,  or  luunber,  it  must  be  understood  to  have 
been  used  with  tliat  meaning,  and  no  evidence  of  custom  will  be  admissil)le 
to  attribute  any  other  to  it;  per  cunam  in  Smith  v.  Wilson,  31  B.  &  Ad.  728; 
see  also  Hockin  v.  Cooke,  4  T.  R.  314;  The  Master  of  St.  Cross  v.  Lord 
Howard  de  Walden,  6  T.  R.  338;  Wing  v.  Erie,  Cro.  Eliz.  2G7 ;  Xohle  v.  Dnr- 
rell,  3  T.  R.  271. 

In  Doe  v.  Lea,  11  East,  312,  it  was  held  that  a  lease  by  deed  of  lands  since 
the  new  style,  to  hold  from  the  feast  of  St.  Michael,  must  mean  Xew  Micliael- 
mas,  and  could  not  be  shown  by  parol  evidence  to  refer  to  Old  Micliaelmas. 
In  Farley  v.  Wood,  1  Esp.  198,  Runn.  Eject.  112,  Lord  Kenyon  had,  under 
similar  circumstances,  admitted  parol  evidence  of  the  custom  of  tlie  country 
to  explain  the  meaning  of  tlie  word  Michaelmas :  and  tlie  court,  in  Doe  v. 
Lea,  on  hearing  that  case  cited,  asked  whether  the  holding  there  was  l»j  deed, 
which  it  does  not  appear  to  have  been;  and  to  which  it  may  be  added,  that  it 
appears  possible  that  it  was  not  even  in  writing. 

In  Doe  V.  Benson,  4  B.  &  A.  588,  evidence  of  the  custom  of  the  country 
was  held  admissible  for  the  purpose  of  showing  that  a  letting  by  parol  from 
Lady-day  meant  from  Old  Lady-day.  The  court  referred  to  Furley  v.  Wood, 
and  distinguished  that  case  from  Doe  v.  Lea,  on  the  ground  that  the  letting 
there  was  by  deed,  "  whicli,"  said  Holroyd,  Justice,  "  is  a  solemn  instrument; 
and  therefore  parol  evidence  was  inadmissible  to  explain  the  expression  Lady- 
Day  there  used,  even  supposing  tliat  it  was  equivocal." 

It  is  perhaps  not  easy  to  conceive  a  distinction,  founded  on  principle,  be- 
tween the  admissibility  of  evidence  to  explain  terms  used  in  a  deed,  and 
terms  used  in  a  written  contract  not  under  seal :  for  though,  wlien  tlie  terms 
of  a  deed  are  ascertained  and  understood,  the  doctrine  of  estoppel  gives 
them  a  more  conclusive  effect  than  those  of  an  unsealed  instrument ;  yet  the 


WIGGLESWORTH    V.    DALLISON.  861 

rule  that  parol  evidence  shall  not  be  admitted  to  vary  the  written  terras  of  a 
contract,  seems  to  applj'  as  strongly  to  a  contract  without  a  seal  as  with  one; 
while,  on  the  other  hand,  it  appears  from  the  principal  case  of  WUjylesworth 
V.  DalUson,  without  going  further,  that  in  cases  Avhere  parol  evidence  is  in 
other  respects  admissible,  the  fact  that  the  instrument  is  under  seal  forms 
no  insuperable  obstacle  to  its  reception.  [See  also  Abbott  v.  Bates,  43  L.  J. 
C.  P.  150.] 

Nor  does  it  seem  necessary,  in  order  to  pi'eveat  a  contradiction  between 
Due  V.  Lea  and  Doe  v.  Benson,  and  Furley  v.  Wood,  to  establish  any  such 
distinction  between  deeds  and  other  written  instruments ;  for  in  Doe  v.  Ben- 
son, the  letting  seems  not  to  have  been  in  writing,  so  that  the  objection  to 
the  admission  of  parol  evidence,  founded  upon  the  nature  of  a  written  in- 
strument, did  not  arise.  In  Furley  v.  Wood  the  letting  was  perhaps  also  by 
mere  parol;  and  though  the  evidence  was,  it  is  true,  oflered  to  explain  the 
notice  to  quit,  still  it  may  be  urged,  that  when  the  holding  was  once  settled 
to  commence  from  Old  Michaelmas,  the  notice  to  quit,  which  probably  con- 
tained the  words,  "  at  the  expiration  of  your  temn,"  or  something  ejusdem 
generis,  must  be  held  to  have  had  express  reference  to,  and  to  be  explained 
by  it.  We  must  not  therefore,  it  is  submitted,  too  hastilj'  infer  that  parol 
evidence  of  custom  would  be  receivable  to  explain  a  word  of  time  used  in  a 
lease  in  writing,  but  not  under  seal.  [See,  however,  Rogers  v.  Hull  Dock 
Co.,  3-1  L.  J.  Ch.  165,  where  the  evidence  Avas  admitted  to  explain  such  an 
agreement.] 

Doe  V.  Lea  was  acted  upon  by  the  Court  of  Common  Pleas  in  Smith  v. 
Walton,  8  Bing.  238,  where  the  defendant  avowed  for  rent  payable  "  at  3Iar- 
tinmas  to  v:it,  November  23rd;"  the  plaintiff  pleaded  non  tenuit ;  and  a  hold- 
ing from  Old  jVIartinmas  having  been  proved,  the  court  thought  that  the 
words  after  the  videlicit  must  be  rejected,  as  inconsistent  with  the  term 
Martinmas,  which  they  thought  themselves  bomid  by  statute  to  interpret 
November  11th;  that  no  evidence  was  admissible  to  explain  the  record:  and 
that  there  was,  therefore,  a  fatal  variance  between  it  and  the  evidence;  see 
Hockin  v.  Cooke,  4  T.  R.  314;  The  Master  of  St.  Cross  v.  Lord  Hoicard  de 
Wahlen,  6  T.  P.  338;  Kearney  v.  Jung,  2  B.  &  A.  301;  Sproule  v.  Legge,  1  B. 
&  C.  16.     lllogg  v.  Berrington,  2  F.  &  F.  24G. 

Custom  cannot  alter  or  control  the  law.  In  ^^eyer  v.  Dresser,  16  C.  B.  N.  S. 
646 ;  33  L.  J.  C  P.  289,  which  was  an  action  for  freight,  the  defendant 
sought  by  evidence  of  usage,  alleged  to  be  universal  in  the  mercantile  world, 
to  establish  a  right  to  deduct  from  the  amount  of  freight  due  for  goods  de- 
livered the  value  of  certain  other  goods  which  ought  to  have  been  but  were 
not  delivered  by  the  plaintifl",  but  the  court  held  that  "a  universal  usage 
which  is  not  according  to  law  cannot  be  set  up  to  control  the  law."  See  also 
Goodwin  V.  liobarts,  L.  P.  10  Ex.  337,  at  p.  357,  44  L.  J.  Ex.  162;  and  the 
judgment  of  Blackburn,  J.,  in  Cronch  v.  Credit  Fonder,  L.  R.  8  Q.  B.  386, 
though  the  latter  is  to  some  extent  qualified  by  that  of  the  Exchequer 
Chamber  in  Goodwin  v.  liobarts,  sup.  In  Crouch  v.  Credit  Fonder,  L.  R.  8 
■  Q.  B.  38G,  the  court  point  out  that  "  where  the  incident"  (sought  to  be  intro- 
duced by  usage  into  a  contract)  "  is  of  such  a  nature  that  the  parties  are  not 
themselves  competent  to  introduce  it  by  expi'ess  stipulation,"  {e.g.,  to  make 
a  modern  instrument  negotiable),  "no  such  incident  can  be  annexed  by  the 
tacit  stipulation  arising  from  usage."  See  further,  Seymour  v.  Bridge,  14  Q. 
B.  D.  400,  54  L.  J.  Q.  B.  347;  Xeilson  v.  James,  9  Q.  B.  D.  546,  51  L.  J.  Q.  B. 
369;  Perry  v.  Burnett,  15  Q.  B.  D.  388,  54  L.  J.  Q.  B.  466;  as  to  how  far  a 


862  WIGGLESWORTH   Y.    DALLISON. 

custom  of  the  Stock  Exchange  to  disregard  Leeman's  Act,  30  &  31  Vict, 
c.  29,  s.  1,  can  be  held  binding. 

Again,]  evidence  of  usage,  tliongh  sometimes  admissible  to  add  to,  or  ex- 
plain, is  never  so  to  var}',  or  to  contradict,  either  expressly  or  by  implication, 
the  terms  of  a  Avritten  instrument,  Mayce  v.  Atkinson,  2  M.  &  W.  442;  Adams 
V.  Wordley,  1  M.  &  W.  374;  Trueman  v.  Lodc.r,  11  A.  &  E.  589;  [see  Ilumfrey 
V.  Dale,  E.  B.  &  E.  1004;  Ihdchinson  v.  Tatham,  L.  R.  8  C.  P.  482,  42  L.  J.  C. 
P.  260;  Norden  Steamship  Co.  v.  Dempsey,  1  C.  P.  D.  G54,  45  L.  J.  C.  P.  7G4 ; 
The  AJhambra,  6  P.  D.  68,  50  L.  J.  P.  D.  3G,  though  where  a  custom  was 
admitted  to  exist  and  in  a  charter-party  the  words  "as  customary"  were 
written,  it  was  held  that  the  custom  must  prevail,  even  though  it  contradicted 
a  printed  term  in  the  charter-party,  Scrutton  v.  Childs,  30  L.  T.  N.  8.  212.] 

Thus,  in  Yeates  v.  Pym,  6  Taunt.  445,  in  an  action  on  a  warranty  of  prime 
singed  bacon,  evidence  was  offered  of  a  usage  in  the  bacon  trade,  that  a  cer- 
tain latitude  of  deterioration  called  "average  taint"  was  allowed  to  subsist 
before  the  bacon  ceased  to  answer  the  descrii)tlon  of  prime  bacon.  This 
evidence  was  held  inadmissible,  first  at  Xisi  Prius,  by  Heath,  Justice,  and 
afterwards  by  the  Court  of  Common  Pleas. 

In  Blackett  v.  Royal  Exchange  Insiiraiice  Company,  2  Tyrwh.  26G  [2  Cr.  &  J. 
244],  which  was  an  action  on  a  policy  upon  "  sliip,  tfv,-.,  boat,  and  other  furni- 
ture," evidence  was  offered  that  it  was  not  tlie  usage  of  underwriters  to  pay 
for  boats  slung  on  the  davits  on  the  larboard  quarter;  but  was  rejected  at 
Nisi  Prius,  and  the  rejection  confirmed  by  the  Court  of  Exchcfjucr.  "  The 
objection,"  said  Lord  Lyndluirst,  delivering  judgment,  "  to  the  parol  evidence 
is,  that  it  was  not  to  explain  any  ambiguous  words  in  the  policy,  any  words 
which  might  admit  of  doubt,  nor  to  introduce  matter  upon  which  the  policy 
was  silent,  but  was  at  direct  variance  with  the  words  of  the  policy,  and  in 
plain  opposition  to  the  language  it  used.  Tluxt  wliereas  tlie  policy  imported  to 
be  upon  the  ship,  furniture,  and  apparel  generally,  the  usage  is  to  say  that  it 
is  not  upon  all  tlie  furniture,  and  apparel,  Ijut  upon  part  only,  excluding  the 
boat.  Usage  may  be  admissible  to  explain  wliat  is  doubtful,  it  is  never 
admissible  to  contradict  what  is  plain."  [This  case,  however,  is  mentioned 
with  disapproval  in  Myers  v.  Sari,  30  L.  J.  Q.  B.  9;  and  Ilumfrey  v.  Bale, 
supra.} 

Hall  V.  Janson,  4  E.  &,  B.  500,  was  an  action  upon  a  policy  of  marine  insur- 
ance in  the  ordinary  form,  in  which  the  interest  was  declared  to  be  "  on 
money  advanced  on  account  of  freight,"  and  the  count  alleged  the  interest  to 
be  in  the  shipowner,  and  that  it  became  subject  to  a  general  average  contribu- 
tion :  a  plea  to  that  count  stating  a  custom  of  London,  where  the  policy  was 
made,  that  insurance  upon  "  money  advanced  on  account  of  freight"  should 
not  be  liable  for  a  general  average,  was  held  bad,  the  custom  alleged  being 
inconsistent  with  the  terms  of  the  pollcj'.  [(See,  however.  Miller  v.  Tither- 
ington,  G  H.  &  N.  278.) 

Where  under  an  alleged  usage  of  trade  the  underwriters  on  a  marine  policy 
covering  loss  by  jettison  sought  to  be  relieved  from  payment  of  anything 
beyond  the  assured's  own  proportion  of  a  loss  of  his  goods  which  had  been 
jettisoned  under  circumstances  constituting  a  general  average,  leaving  him  to 
recover  the  residue  from  the  other  contributories,  the  court  held  the  custom 
bad  as  contrary  to  the  express  agreement  of  the  parties.  Dickenson  v.  Jar- 
dine,  L.  R.  3  C.  P.  639 ;  37  L.  J.  C.  P.  321.  See  also  Menzies  v.  Lightfoot,  L.  R. 
11  Eq.  459. 

In  Ilathesing  v.  Laing,  L.  R.  17  Eq.  92,  43  L.  J.  Ch.  233,  a  custom  at  Bombay, 


WIGGLESWORTH    V.    DALLISON.  863 

making:  it  obligatory  on  ship  captains  to  require  tlie  production  of  the  mate's 
receipt  before  signing  the  bill  of  lading,  was  held  bad  by  Bacon,  V.-C,  sed 
vide  Schuster  v.  M'Krllar,  7  E.  &  B.  704. 

In  several  cases  alleged  customs  of  ports  to  talce  delivery  on  terms  incon- 
sistent with  charter-parties  have  been  held  inadmissible  :  The  Alhamhra,  6  P. 
D.  GS ;  Ilaijton  v.  Incin,  5  C.  P.  D.  130. 

In  Suse  V.  Pompe,  8  C.  B.  N.  S.  538,  evidence  was  given  of  a  usage  in  Lon- 
don tliat  on  non-payment  by  the  acceptor  of  a  bill  of  exchange  drawn  and 
indorsed  in  England,  and  payable  abroad  at  a  certain  rate  of  exchange,  the 
holder  is  entitled  at  his  election  to  recover  from  the  drawer  either  the  re- 
exchange,  or  the  amount  which  he  paid  for  the  bill.  This  evidence  was  held 
inadmissil)le,  as  contradicting  the  terms  of  the  l)ill. 

In  WiUnns  v.  Auers,  3  App.  Cas.  133,  47  L.  J.  P.  C.  1,  grave  doubts  were 
expressed  as  to  the  validity  of  an  alleged  custom  to  allow  a  fixed  percentage 
of  20  per  cent,  for  exchange,  re-exchange,  and  interest,  in  cases  of  certain 
dishonoured  bills,  but  the  point  was  not  decided.] 

In  Roberts  v.  Barker,  i  C.  &  M.  808,  the  question  was  whether  a  covenant 
in  a  lease  whereby  the  tenant  bound  himself  not,  on  quitting  the  land,  to  sell 
or  take  awaj'  the  manure,  l)ut  to  leave  it  to  be  expended  by  the  succeeding 
tenant,  excluded  the  custom  of  the  country,  by  which  the  outgoing  tenant 
was  bound  to  leave  the  manure,  and  was  entitled  to  be  paid  for  it.  Tlie  court 
held  that  it  did.  "  It  was  contended,"  said  Lord  Lyndhurst,  delivering  judg- 
ment, "that  the  stipulation  to  leave  the  manure,  was  not  inconsistent  with 
the  tenant's  being  paid  for  what  was  so  left,  and  that  the  custom  to  pay  for 
the  manure  miglit  be  engrafted  on  the  engagement  to  leave  it.  But  if  the 
parties  meant  to  be  governed  l)y  the  custom  in  this  respect,  there  was  no 
necessity  for  any  stipulation,  as,  l>y  the  custom,  the  tenant  would  be  bound 
to  leave  the  manure,  and  would  be  entitled  to  be  paid  for  it.  It  was  alto- 
gether idle,  therefore,  to  provide  for  one  part  of  that  which  was  sufficiently 
provided  for  by  the  custom,  unless  it  was  intended  to  exclude  the  other  part." 
Accord.  Clarke  v.  Royston,  13  M.  &  W.  752.  See  further,  Reading  v.  Menham, 
1  M.  &  Rob.  23G;  IClarke  v.  Westrope,  18  C.  B.  765];  Foster  v.  Mentor  Life 
Assurance,  4  E.  &  13.  48. 

[As  to  the  meaning  of  the  rule  prohibiting  a  "  contradiction  "  of  the  instru- 
ment, see  some  valuable  remarks  in  the  judgment  of  the  Queen's  Bench,  in 
Ilumfreij  v.  Dale,  7  E.  &  B.  2GG,  cited  ante,  p  58G,  and  p?r  Lord  Blackburn,  in 
Tucker  v.  Linger,  8  App.  Cas.,  at  p.  511.  In  Fleet  v.  Murton,  L.  R.  7  Q.  B. 
•  132,  Blackburn,  J.,  admitting  his  "  difficulty  in  making  out  how  the  custom 
could  make  the  Ijroker,  who  was,  in  fact,  not  contracting  as  purchaser,  liable 
in  the  terms  of  the  count  in  that  case  {Humfrerj  v.  Dale),  which  charged  the 
defendant  as  a  purchaser,"  suggests  that  the  true  view  of  the  broker's 
lia])iUty  under  the  custom  is  as  a  del  credere  agent,  who  guarantees  a  pur- 
chaser. See  Ihmifrey  v.  Dale,  discussed  in  Myers  v.  Sari,  30  L.  J.  Q.  B.  D, 
and  by  Jessel,  M.  R.,  in  Soiithioell  v.  Bowditch,  45  L.  J.  C.  P.,  at  p.  3G1. 

In  Hutchinson  v.  Tatham,  L.  R.  8  C.  P.  482,  in  which  evidence  of  usage 
.  was  admitted  to  charge  the  defendant  as  principal  on  a  charter-party,  which 
he  had  signed  "  as  agent  for  the  merchants"  only,  Brett,  J.,  says  "  the  cases 
have  lately  gone  very  far  as  to  the  admissibility  of  evidence  of  custom.  It 
is  clear,  however,  that  no  such  evidence  can  be  admitted  to  contradict  the 
plain  terms  of  a  document.  If  evidence  were  tendered  to  prove  a  custom 
that  the  defendants  should  be  liable  as  principals  under  all  circumstances, 
that  would  contradict  the  document ;  but  it  has  been  decided  that  though  you 


364  WIGGLESWORTH   V.   DALLISON. 

cannot  contradict  a  written  document  by  evidence  of  custom,  you  may  add  a 
terra  not  inconsistent  witli  any  term  of  tlic  contract.  Wliat  I  appreliend,  it 
is  liere  attempted  to  add,  is  not  tliat  tlie  defendants  would  be  lial)!e  as  princi- 
pals in  the  first  instance,  or  under  all  circumstances,  but  that  thouiih  primH 
facie,  and  in  most  cases  the  brokers  are  mere  agents,  yet  if  they  fail  to  dis- 
close the  names  of  the  principals  within  a  reasonable  time,  they,  the  agents, 
may  on  the  happening  of  this  contingency  be  principals.  This  is  not,  I 
think,  on  the  whole,  inconsistent  with  the  contract,  and,  therefore,  with  some 
doubt,  I  think  the  evidence  was  admissil)le." 

In  Robinson  v.  Mollett,  L.  R.  5  C  P.  (UG,  7  Id.  84,  7  H.  L.  802,  41  L.  J.  C.  P. 
65,  44  Id.  302,  the  plaintiff,  a  London  tallow  broker,  sought  to  be  indemnified 
by  the  defendant  against  the  loss  upon  a  contract  for  the  purchase  of  tallow. 
The  defendant  had  instructed  the  plaintiff  to  purchase  fifty  tons  of  tallow, 
as  broker,  for  him.  The  plaintitt",  acting  for  other  l)uyers  as  well  as  the  de- 
fendant, bought  1.50  tons.  He  forwarded  a  bought  note  to  the  defendant 
for  the  fifty  tons,  and  to  the  vendors  a  sold  note  for  the  150  tons,  l)nt  made 
no  contract  for  the  purchase  of  fifty  tons  on  behalf  of  the  defendant,  on 
which  the  latter  could  come  forward  as  principal,  his  iMtention  being  to 
appropriate  fifty  of  the  150  tons  to  the  defendant.  The  defenihuit  refused 
to  take  delivery  of  the  fifty  tons,  and  the  market  having  fallen  the  plaintiff 
was  obliged,  according  to  the  usage  of  the  trade,  to  pay  the  vendor  the  dif- 
ference of  price :  and  this  loss  he  sought  to  recover  from  the  defendant. 
It  was  conceded  that  apart  from  usage  there  was  no  fulfilment  of  the  de- 
fendant's order  for  fifty  tons,  and  he  could  not  be  compelled  to  take  the 
tallow  or  indemnify  the  plaintiff";  l)ut  it  was  contended  on  l)eiialf  of  the 
latter,  that  he  was  justified  by  the  usage  of  the  London  tallow  market, 
though  unknown  to  the  defendant,  in  fnlfiUiug  the  order  in  this  way.  In  the 
Common  Pleas,  Bovill,  C.  J.,  and  Montague  Smitli,  J.,  were  in  favour  of  the 
usage.  Willes  and  Keating,  JJ.,  were  of  a  contrary  opinion,  on  the  ground 
that  "  the  authority  of  the  brokers  was  to  buy  as  brokers  for  their  principal, 
not  to  sell  to  him.  If  the  sale  had  been  consummated  in  the  course  insisted 
upon  by  the  brokers,  the  principal  would  have  bought  them  of  his  own 
brokers  and  no  one  else.  A  custom  of  trade  may  control  the  mode  of  per- 
formance of  a  contract,  but  cannot  control  its  intrinsic  character.  No 
usage  unknown  to  the  principal  can  justify  a  broker  in  converting  himself 
into  a  principal  seller."  On  appeal,  the  Court  of  Excheciner  Chamber  was 
equally  divided,  but  the  House  of  Lords  were  unanimous  in  holding  the  cus- 
tom to  be  invalid.  See  also  Hamilton  v.  Young,  7  L.  R.  Ir.  28!),  where  a 
custom  of  the  Stock  Exchange  authorising  brokers  entitled  to  sell  their 
customers'  securities  to  take  them  for  themselves  at  the  price  of  the  day, 
was  held  unreasonable,  and  not  binding  on  the  customer,  and  McDevitt  v. 
Connolly,  18  L.  R.  Ir.  207;  also  Barrow  v.  Duster,  13  Q.  B.  D.  C35,  where  a 
custom  in  the  hide  trade  to  make  the  selling  broker  liable  on  a  contract  if  he 
did  not  disclose  the  name  of  his  principal  within  a  reasonable  time,  was  held 
inconsistent  with  a  term  in  that  contract  l\v  which  disputes  were  to  be  re- 
ferred to  the  ar))itration  of  the  selling  broker. 

Terms  not  incidental  to  those  expressed  in  the  written  contract  cannot  be 
annexed  to  it  by  oral  evidence  of  a  particular  usage  of  trade.  Thus  a  char- 
terer of  a  vessel  for  a  voyage  from  here  to  China,  the  ship  to  be  consigned 
to  his  agents  there,  free  of  commission,  sought  in  vain  upon  the  strength  of 
a  particular  custom  to  add  to  the  charter  a  tei'm  that  the  agents  in  China 
should  be  entitled  to  procure  charters  for  the  return  voyage  from  China  and 


WIGGLESWORTH   V.   DALLISON.  865 

be  paid  commission  on  tlie  amount  of  freiglit  mentioned  in  such  cliarters, 
Philips  V.  Briard,  1  H.  &  N.  211.  And  see  Gibson  v.  Crick,  1  H.  &  C.  142; 
Allan  V.  Snndius,  Id.  123. 

In  Ihitcheson  v.  Eaton,  13  Q.  B.  D.  8(11,  tiie  plaintiffs  liad  bought  j!:oods  of 
tlie  defendants,  who  wex'e  Iji-olvcrs,  but  on  tlie  face  of  tlie  contract  sold  as 
principals.  Tlie  contract  contained  a  clause  pi-ovidina;  tliat  "  any  dispute 
arisiuii'  on  it  was  to  be  settled  bj'  arbitration."  Tlie  plaintiffs  allei^ed  tliat  the 
goods  wei'e  of  inferior  qualit}',  and  tlie  matter  liaving  been  referred  to  arlji- 
tration,  the  arbitrators  decided  in  favour  of  the  defendants,  on  the  ground 
of  the  existence  of  a  custom  relieving  them  from  liability  if,  as  was  the 
fact,  they  disclosed  the  names  of  their  principals.  It  was  held  by  Brett, 
M.  R.,  and  Bowen,  L.  J.,  diss.  Frj',  L.  J.,  that  in  finding  tlie  existence  of  tliis 
custom  the  arbitrators  had  exceeded  their  jurisdiction,  whether  the  evidence 
of  the  custom  was  admissible  or  not.  In  this  case  a  jury  negatived  the 
existence  of  the  custom. 

A  custom  or  usage,  to  be  binding,  at  any  rate  on  those  not  acquainted  with 
it,  must  be  reasonable,  and  tlie  question  of  reasonableness  is  for  the  court. 
See  Co.  Litt..56  b.,  Lcnchardt  v.  Cooper,  3  Ding.  N.  C.  99,  5  Id.  128;  Tyson  v. 
Smith,  9  A.  &  E.  421 ;  Gibson  v.  Crick,  1  H.  &  C.  142;  Duncan  v.  Hill,  L.  R.  8 
Ex.  242,  42  L.  J.  Ex.  179;  Merry  v.  Xickalls,  L.  R.  7  Ch.  733,  7  H.  L.  530,  41 
L.  J.  Ch.  767,  45  Id.  575;  Down  v.  City  of  London  Brewery  Co.,  L.  R.  8  Eq. 
155;  Bradlmrn  v.  Foley,  3  C.  P.  D.  129,  47  L.  J.  C.  P.  331;  Pierson  v.  Scott,  9 
Ch.  D.  198,  47  L.  J.  Ch.  705 ;  Perry  v.  Barnett,  15  Q.  B.  D.  388,  54  L.  J.  Q.  B. 
466.  Where,  however,  in  a  bill  of  lading  for  goods  shipped  for  London,  it 
was  provided  that  "  average,  if  any,  should  be  adjusted  according  to  British 
custom,"  and  a  fire  having  broken  out  in  the  ship,  water  was  poured  in  to 
extinguish  it,  and  injured  the  goods  mentioned  in  the  bill  of  lading;  it  was 
held  that  though  by  British  law  such  loss  was  a  general  average  loss,  still  as 
the  practice  of  British  average  adjusters  was  not  to  allow  it  as  such,  the 
parties  must  be  ijound  l)y  that  practice,  "though  it  might  be  according  to 
the  best  opinion  vicious  and  unreasonable ;  "  Stewart  v.  West  India  Steamshixt 
Co.,  L.  R.  8  Q.  B.  88,  362.]  When  evidence  of  usage  is  admitted,  evidence 
may  be  given  in  reply,  tending  to  show  such  usage  to  be  unreasonable.  Bot- 
tomley  v.  Forbes,  5  Bing.  N.  C.  128. 

As  to  the  admissibility  and  effect  of  previous  usage  between  the  parties  to 
a  contract,  see  Bourne  v.  Gatliffe,  11  CI.  &  Fin.  45;  Fo7-d  v.  Yates,  2  M.  &  G. 
549;  2  Scott,  N.  R.  645,  S.  C. :  [Gumming  v.  Shand,  5  H.  &  N.  95,  29  L.  J. 
Exch.  129.  And  as  to  the  evidence  of  usage  between  other  parties  in  tlie 
same  trade  to  sliow  the  reasonableness  of  a  contract,  see  Rowcliffe  v.  Leiyh, 
6  Ch.  D.  256,  46  L.  J.  Ch.  60. 

Parol  evidence  is  inadmissible  to  show  that  the  parties  to  a  Avritten  con- 
tract intended  to  exclude  tlie  incorporation  into  it  of  a  customary  incident. 
Fawkes  v.  Lamb,  31  L.  J.  Q.  B.  98. 

As  to  what  is  sufficient  evidence  to  establish  a  usage  in  a  trade,  see  Mac- 
kenzie V.  Dunlop,  3  Macq.  II.  of  L.  C.  22;  Dent  v.  Nickalls,  22  W.  R.  218; 
4.bbott  V.  Bates,  43  L.  J.  C.  P.  150.  Ex  parte  Poicell,  1  Ch.  D.  501 ;  44  L.  J.  Ch. 
122,  311.  In  re  Witt,  2  Ch.  D.  489;  Willans  v.  Ayers,  3  App.  Cas.  133,  47  L. 
J.  P.  C.  1;  Nelson  v.  Dahl,  12  Ch.  D.  576;  Wildy  v.  Stephenson,  1  Cab.  &  El. 
3;  Knight  v.  Cotesworth,  1  Cab.  &  El.  51,  j)er  Mathew,  J.  In  Fleet  v.  Murton, 
L.  R.  7  Q.  B.  126 ;  41  L.  J.  Q.  B.  49,  evidence  of  custom  in  the  London  colonial 
market  was  held  admissible  in  proof  of  a  similar  custom  in  the  London  fruit 
trade.] 


866  WIGGLESWORTH   V.   DALLISON. 

Lord  Eldon,  in  Aiiderson  v.  Pitcher,  2  B.  &  P.  1G8,  expressed  an  opinion, 
that  the  practice  of  admitting  usage  to  explain  contracts  ought  not  to  be 
extended.  See  also  the  expression  of  the  court  in  Trucman  v.  Lodcr,  11  A.  & 
E.  589 ;  and  Johnstone  v.  Vshornc,  Ibid.  549.  [But  the  tendencj'  of  the  courts 
appears  now  to  be  the  other  way.  See  Humfrey  v.  Dale,  7  E.  &  B.  266,  E.  B. 
&  E.  1004;  Hutchinson  v.  Tatham,  L.  R.  8  C.  V.  482,  42  L.  J.  C.  P.  260.] 

In  Cross  v.  Eglin,  2  B.  &  Ad.  100,  evidence  had  been  ottered  for  tlie  purpose 
of  showing  that  the  plaintifls,  who  had  contracted  for  "  300  quarters  (more  or 
less)  of  foreifjn  rye,"  could  not,  consistently  with  the  usage  of  trade,  be 
required  to  receive  so  large  an  access  as  45  quarters  over  the  300:  the  ques- 
tion as  to  the  admissibility  of  the  evidence  ultimately  proved  immaterial;  but 
Littledale,  J.,  said  that  where  words  were  of  such  general  import,  he  should 
feel  much  dUHculty  in  saying  that  evidence  ought  to  be  received  to  ascertain 
their  meaning.  See'ieiC('.s  v.  Marsliall,  8  Scott,  N.  R.  477;  7  M.  &  G.  729,  per 
curiam.  Moore  v.  Campbell,  10  Exch.  323 ;  Bourne  v.  Seymour,  16  C.  B.  337. 
[Carter  v.  Crick,  4  H.  &  N.  412.  It  is  not,  however,  necessary  that  the  phrase 
should  be  itself  "  ambiguous," /wr  Blackburn,  J.,  Myers  v.  Sari,  30  L.  J.  Q.  B. 
9;  and  see  Alcock  v.  Leeuw,  1  Cab.  &  El.  98.] 

It  is  right  to  observe,  that  though  in  certain  cases  above  pointed  out  evi- 
dence of  usage  is  received  to  explain  the  terms  used  in  a  contract,  yet,  when 
the  jury  have  decided  on  the  meaning  of  those  terms,  it  is  not  for  thern  but 
for  the  court  to  put  a  construction  upon  the  entire  contract  or  document. 
Hutchinson  v.  Boioker,  5  M.  &  W.  535,  and  the  judgment  in  Neilson  v.  Har- 
ford, 8  M.  &  W.  806.     IBoioes  v.  Shand,  2  App.  Cas.  455,  462.] 


Usage  and  custom  distinguished. —  The  decisions  Oil  the  sub- 
ject of  usages  are  numerous,  but  are  not  always  reconcilable. 
"  Each  case  must  be  determined  by  itself,  aided  by  such  light 
as  may  be  derived  from  the  judgments  in  other  cases  when 
the  facts  are  analagous."  Steel  Works  v.  Dewey,  37  Ohio  St. 
242,  250.  Though  custom  and  usage  arc  often  used  as  con- 
vertible terms ;  yet,  strictly  speaking,  custom  is  that  length  of 
usa(je  which  has  become  law.  A  general  custom  is  the  com- 
mon law  itself,  or  a  part  of  it.  Walls  v.  Bailey,  49  N.  Y.  464, 
471.  This  distinction  is  also  adverted  to  in  Clark  v.  Baker,  11 
Met.  186, 188;  Morning  Star  ?'.  Cunningham,  110  Ind.  328,  334; 
Jackson  v.  Railroad  Co.,  48  Me.  147 ;  Wood  v.  Watson,  53  Id.  300. 
However,  the  terms  are  often  used  as  synonymous.  McMas- 
ters  V.  Penn.  R.  R.,  69  Pa.  St.  374 ;  Carter  v.  Coal  Co.,  77  Id. 
286 ;  U.  S.  V.  Buchanan,  8  How.  83,  102,  103. 

"  A  usage,  which  is  also  called  a  custom,  though  the  latter 
word  has  also  another  signification,  is  a  long  and  uniform  prac- 
tice, applied  to  habits,  modes  and  courses  of  dealing.  It  relates 
to  modes  of  action,  and  does  not  comprehend  the  mere  adop- 
tion of  certain  peculiar  doctrines  or  rules  of  law."    Chapman,  J., 


WIGGLESWOETH    V.   DALLISON.  867 

in  Dickinson  v.  Gay,  7  Allen  35 ;  Macy  v.  Whaling  Ins.  Co., 
9  ]\Iet.  354,  302.  At  an  early  day  courts  expressed  regret  at 
the  extension  of  this  species  of  evidence ;  notably  Mr.  Justice 
Story  in  Donnell  r.  ('olumbian  Ins.  Co.,  2  Sum.  307,  377.  See 
also  Clark  v.  Baker,  11  Met.  180,  188 ;  Susquehanna  Fertilizer 
Co.  V.  White,  60  Md.  4-44,  455  ;  Howe  v.  Mutual  Ins.  Co.,  1 
Sandf.  137, 149  ;  Reals  v.  Terry,  2  Id.  127,  130  ;  Coxe  v.  Heisley, 
19  Pa.  St.  243,  240.  If  usages  contrary  to  the  law  "  were  to 
prevail  they  would  be  productive  of  misunderstanding,  litiga- 
tion and  frequent  injustice,  and  would  be  deeply  injurious  to 
the  interests  of  trade  and  commerce."  Dickinson  v.  Gay,  supra^ 
p.  37. 

Violation  or  interpretation  of  contract.  —  Usage  will  not  be 
allowed  to  vary  the  terms  of  an  express  contract,  embodying 
in  clear  and  positive  terms  the  intention  of  the  parties.  Hence 
it  is  not  admissible  to  vary  the  terms  of  a  policy  of  insurance. 
Grace  v.  American  Ins.  Co.,  109  U.  S.  278 ;  Franklin  Ins.  Co.  v. 
Sears,  21  Fed.  Rep.  290 ;  Castleman  v.  Southern  Mut.  Life  Ins. 
Co.,  14  Bush  197,  202 ;  Sterling  Organ  Co.  v.  House,  25  W. 
Va.  04,  90.  "  There  can  be  no  doubt  that,  in  the  interpretation 
of  written  contracts,  especially  those  of  a  mercantile  character, 
evidence  of  usage  is  competent  and  frequentl}^  admitted,  to 
explain  the  sense  in  which  particular  words  or  phrases  are 
used,  and  to  show  that,  as  applied  to  the  subject  matter,  the 
language  of  the  instruments  was  understood  by  tho  parties  to 
have  a  special  and  peculiar  meaning,  differing  from  that  which 
might  ordinarily  be  attributed  to  it ;  especially  is  this  true  in 
respect  to  policies  of  insurance.  These  contracts,  like  others 
of  a  mercantile  nature,  when  first  introduced  as  subjects  of 
exposition  in  the  courts  of  common  law,  contained  many  loose, 
undefined,  and  indeterminate  words  and  phrases,  which,  if 
interpreted  literall}',  and  without  reference  to  the  course  of 
trade  and  the  customs  of  merchants,  would  have  increased  the 
risk  assumed  by  the  insurers  or  abridged  the  indemnity  secured 
to  the  assured,  contrary  to  the  real  intentions  of  the  parties. 
But  it  is  obvions  that  the  necessity  which  gave  rise  to  the 
•  liberal  rules  which  have  heretofore  been  adopted  by  courts  of 
justice  in  admitting  usages  as  explanatory  of  this  class  of  cus- 
toms has  in  great  measure  ceased  to  exist.  By  a  long  course 
of  judicial  decisions,  that  which  was  originally  indefinite  and 
uncertain    and  difficult  of  application  in  the  language  of  the 


868  WIGGLESWOKTH   V.    DALLISON. 

instrument  has  become  clear,  determinate,  and  well  settled. 
The  consequence  is,  that  of  late  3'ears,  the  tendency  of  courts 
of  law  has  been  to  ai)ply  the  rules  regulating  the  competency 
of  usages  to  explain  and  interpret  the  language  of  written 
instruments  with  great  strictness,  and  to  guard  with  increased 
vigilance  against  the  danger  of  allowing  extrinsic  evidence  to 
vary  or  control  the  Avords  in  wliich  the  parties  have  deliberately 
expressed  their  meaning.  ^Many  of  the  early  authorities  in 
England  and  in  this  country  go  much  farther  in  the  admission 
of  testimony  to  prove  usages  for  the  purpose  of  aiding  in  the 
interpretation  of  Avritten  contracts  than  woiild  be  deemed  to  l)e 
reasonable  or  safe  at  the  present  day.  We  are  inclined  to 
doubt  whether  in  any  case  it  would, now  be  deemed  to  be  com- 
petent to  offer  evidence  to  show  that  a  description  of  a  voyage 
in  a  policy  which  is  susceptible  of  a  clear  and  definite  exposi- 
tion in  conformity  to  the  interpretation  of  the  Avords  as  estab- 
lished by  adjudicated  cases  has  another  and  different  meaning 
by  mercantile  usage  from  that  Avhich  has  been  so  recognized 
and  settled."  BigeloAV,  C.  J.,  in  Seccomb  v.  Provincial  Ins.  Co., 
10  Allen  305,  313 ;  IMacomber  v.  rb)ward  Ins.  Co..  7  Gray  257 ; 
Odiorne  v.  Ncav  England  Jns.  Co.,  101  Mass.  551 ;  Bundiain  v. 
Boston  Ins.  Co.,  139  Mass.  399,  404 ;  Beer  v.  Ins.  Co.,  39  Ohio 
St.  109,  Ins.  Co.  V.  Wright,  1  Wall.  456;  Partridge  v.  Ins.  Co., 
15  Id.  373;  Sperry  v.  Springfield  Ins.  Co.,  26  Fed.  Rep.  234; 
First  Nat.  Bank  v.  Lancashire  Ins.  Co.,  62  Tex.  461 ;  Franklin 
Ins.  Co.  V.  Humphrey,  65  Ind.  549 ;  Park  v.  Ins.  Co.,  48  Ga.  601. 
So  evidence  is  inadmissible  to  vary  any  contract  susceptible 
of  a  plain  meaning.  Hartje  v.  Collins,  46  Pa.  St.  268 ;  Ware  v. 
Haywarcl  Rubber  Co.,  3  Allen  84 ;  Potter  v.  Smith,  103  j\Iass. 
68;  Davis  v.  Galloupe,  111  Id.  121  ;  BroAvn  v.  Foster,  113  Id. 
136 ;  Stansbury  v.  Kephart,  54  la.  647  ;  Smyth  v.  Ward,  46  Id. 
339,  345;  Randolph  v.  Halden,  44  Id.  327,  329;  Phillips  v. 
Starr,  26  Id.  349 ;  Cash  v.  Hinkle,  36  Id.  623 ;  Stebbins  v. 
Brown,  65  Barb.  274 ;  Polhemus  v.  Heiman,  50  Cal.  438 ; 
Rafert  v.  Scroggins,  40  Id.  195 ;  Atkinson  v.  Allen,  29  Id.  375 ; 
Exchange  Bank  v.  Cookman,  1  W.  Va.  69 ;  Cooke  v.  England, 
27  Md.  14,  36 ;  Groat  v.  Gile,  51  N.  Y.  431 ;  Collender  v.  Dins- 
more,  55  Id.  200,  208,  209 ;  Whitmore  v.  Iron  Co.,  2  Allen  52 ; 
Schenck  v.  Griffin,  38  N.  J.  (LaAv)  462,  471 ;  Stervard  v.  Scud- 
der,  4  Zab.  96;  Bigelow  v.  Legg,  102  N.  Y.  652;  Union  Trust 
Co.  V.  Whiton,  47  Id.  172,  180. 


WIGGLES  WORTH    V.    D  ALLISON.  869 

To  this  rule  that  usage  cannot  vary  the  terms  of  a  written 
contract,  there  is  an  exception  in  the  case  of  Language  which 
is  ambiguous,  and  used  in  different  senses,  or  in  the  case  of 
general  words  used  in  a  new,  peculiar,  or  technical  sense ; 
Brown  v.  Brown,  8  Met.  573,  576.  It  is  sufficient  in  the  case  of 
a  policy  of  insurance  if  the  usage  is  known  and  generally  acted 
on  where  the  contracting  parties  reside  ;  Fulton  Co.  v.  Milner, 
23  Ala.  420,  428.  Cases  where  evidence  of  such  usage  has 
been  admitted  are  :  Brown  v.  Brown,  supra  ;  Coit  v.  Commer- 
cial Ins.  Co.,  7  Johns.  385.  See  Johns.  Cas.  289;  Astor  v. 
Union  Ins.  Co.,  7  Cowen  202  ;  Macy  v.  Whaling  Ins.  Co.,  9 
Met.  354,  362 ;  Winthrop  v.  Union  Ins.  Co.,  2  Wash.  C.  C.  8 ; 
Hinten  v.  Loche,  5  Hill  437  ;  Allegre  v.  Ins.  Co.,  6  Harr.  &  J. 
408 ;  Allegre  v.  Maryland  Ins.  Co.,  2  Gill  &  J.  137 ;  Lawrence 
V.  jNIcGregor,  5  Ohio  309 ;  Avery  v.  Stewart,  2  Conn.  69 ;  see, 
also,  Roberts  v.  Button,  14  Vt.  195,  203 ;  see  Eyre  v.  Marine 
Ins.  Co.,  5  W.  &  S.  116  ;  S.  C.  6  Whart.  247  ;  Leach  v.  Beards- 
lee,  22  Conn.  404.  It  will  be  observed  that  most  of  the  above 
are  early  cases,  many  of  them  involving  the  interpretation  of 
policies  of  insurance.  Upon  this  subject,  therefore,  the  re- 
marks of  Mr.  Chief  Justice  Bigelow,  in  Seccomb  v.  Provincial 
Ins.  Co.,  supra,  that  the  necessity  of  "  admitting  usages  as 
explanatory  of  this  class  of  customs  has  in  great  measure 
ceased  to  exist,"  are  pertinent.  But  even  in  earlier  times  there 
was  often  a  disinclination  to  extend  the  doctrine.  In  Gordon 
V.  Little,  8  S.  &  R.  533,  Gibson,  J.,  dissented  from  the  opinion 
of  the  miijority  of  the  court,  that  evidence  of  usage  was  ad- 
missible to  explain  the  meaning  of  "  inevitable  dangers  of  the 
river "  in  a  bill  of  lading,  and  that  river  boatmen  assume  a 
responsibility  different  from  that  of  common  carriers.  And 
the  dissenting  ()[)inion  is  now  law;  Coxe  v.  Heisley,  19  Pa.  St. 
247.  See  Wetherill  v.  Neilson,  Id.  453 ;  Dean  v.  Swoop,  2 
Binn.  72;  Sam[)son  v,  Gazzam,  6  Port.  124.  In  Sleglit  v. 
Rhinelander,  1  Johns.  192,  evidence  of  the  commercial  mean- 
ing of  "  sea  letter "  was  held  inadmissible ;  but  see  S.  C.  2  Id. 
531.  Other  early  cases  which  hold  that  usage  is  inadmissible 
to  control  the  clear  meaning  of  a  contract  are  :  Macomber  v. 
Parker,  13  Pick.  176,  182,  holding  that  "  it  would  only  prove 
how  other  parties  had  considered  similar  contracts "  ;  Rice  v. 
Codman,  1  Allen  377  ;  Ripley  v.  Crooker,  47  Me.  370 ;  Keener 
V.  Bank  of  U.  S.,  2  Pa.  St.  237  ;  Cox  v.  Peterson,  30  Ala.  612 ; 


870  WIGGLESWORTH   V.    DALLISON. 

Insurance  Co.  v.  Wright,  1  Wall.  45G  ;  Barlow  v.  Lambert,  28 
Ala.  710;  Werner  v.  Footman,  54  Ga.  128;  Whitmore  v. 
Steamboat,  20  JNIo.  513 ;  Chouteau  v.  Steamboat,  Id.  519 ; 
Hursh  V.  North,  40  Pa.  St.  243;  The  Sch.  Reeside,  2  Sum. 
568;  Turney  v.  Wilson,  7  Yerg.  340;  McArthur  v.  Sears,  21 
Wend.  194  ;  Knox  v.  Rives,  14  Ala.  249,  259 ;  Aymar  v.  Astor, 
6  Cow.  266  (Savage,  C.  J.,  dissenting)  ;  Rankin  v.  Am.  Ins.  Co., 
1  Hall.  619 ;  Lewis  v.  Thatcher,  15  Mass.  431 ;  Homer  v.  Dorr, 
10  Id.  266 ;  Barksdale  v.  Brown,  1  N.  &  McC.  517  (Cheeves,  J., 
dissenting)  ;  Allan  v.  Dykers,  3  Hill  593 ;  Otsego  Bank  v. 
Warren,  18  Barb.  296 ;  Gross  v.  Criss,  3  Gratt.  262.  Although 
the  tendency  is  to  reject  evidence  of  usage  in  violation  of  the 
terms  of  express  agreements,  yet  the  later  decisions  often  favor 
its  admission  in  doubtful  cases.  In  Burnham  v.  Boston  iNIarine 
Ins.  Co.,  139  Mass.  399,  it  was  stated  by  Mr.  Justice  Field,  that 
"  a  written  contract  must  be  construed  according  to  its  terms 
in  their  ordinary  signification,  unless  those  terms,  by  usage  in 
the  business  or  between  the  parties,  have  a  different  meaning," 
and  evidence  was  held  inadmissible  that,  before  the  contract  of 
insurance  was  executed,  the  parties  agreed  to  insure  "  outfits  " 
under  the  term  "  advances."  But  in  Mooney  v.  Howard  Ins. 
Co.,  138  Mass.  375,  evidence  was  admitted  in  an  action  on  a 
policy  against  loss  by  fu-e  on  a  junk-dealer's  stock  of  "  rags  " 
and  "  old  metals "  that,  by  a  usage  of  the  trade,  those  terms 
had  acquired  a  broader  signification  than  commonly  belongs  to 
them.  As  to  the  meaning  of  "fancy-goods  and  Yankee-notion 
store  "  in  a  policy  of  insurance,  see  Barnum  v.  Merchants'  Fire 
Ins.  Co.,  97  N.  Y.  188,  193.  Evidence  is  inadmissible  to  change 
the  legal  effect  of  a  deed.  Tucker  v.  Smith,  68  Tex.  473,  or  to 
alter  or  modify  the  express  provision  of  a  contract  for  the  sale 
of  barley;  Gibney  v.  Curtis,  61  Mo.  192;  or  that  when  one 
sells  or  transfers  a  promissory  note,  he  is  to  "  indorse,"  although 
not  expressed  in  the  terms  of  the  contract ;  Paine  v.  Smith,  33 
Minn.  495,  499,  500.  Evidence  has  been  admitted  to  show  the 
meaning  of  the  word  "  day "  in  case  of  the  sale  of  a  reaping 
machine  with  right  to  test  it  for  a  day ;  Fuller  v.  Schroeder,  20 
Nebr.  63.  Also  to  show  that  a  boat  which  belongs  to  a  vessel 
passes  by  sale,  though  not  mentioned  in  the  bill  of  sale ;  The 
Merrimac,  29  Fed.  Rep.  157.  So  evidence  is  admissible  to 
show  that  certain  terms,  hardly  intelligible  in  themselves,  from 
not  being  in  ordinary  use  or  from  being  used  in  a  peculiar  or 


■WIGGLES WORTH    Y.   DALLISON.  871 

technical  way,  have  a  recognized  and  well-known  meaning  in  a 
special  trade  ;  Page  v.  Cole,  120  Mass.  37.  See  Whitney  v. 
Boardman,  118  Id.  242 ;  Swett  v.  Shumway,  102  Id.  365 ;  Miller 
V.  Stevens,  100  Id.  518 ;  Eaton  v.  Smith,  20  Pick.  156  ;  Daniels 
V.  Hudson  River  Ins.  Co.,  12  Cush.  416 ;  Silberman  v.  Clark, 

96  N.  Y.  522;  Harris  v.  Rathbone,  2  Keyes  312;  Bissell  v. 
Campbell,  54  N.  Y.  353 ;  Pilmer  v.  Bank,  16  la.  321 ;  Hibler 
V.  IMcCartney,  31  Ala.  501 ;  Kiriball  v.  Brauner,  47  Mo.  398 ; 
Wilbraham  v.  Stanley,  57  Cal.  476 ;  Steyer  v.  Dwyer,  31  la.  20 ; 
Busch  V.  Pollock,  41  Mich.  64 ;  Bancroft  v.  Peters,  4  Id.  619. 
It  is  said  in  the  late  case  of  Susquehanna  Fertilizer  Co.  v. 
White,  m  Md.  444,  454  (1886),  that  "it  cannot  be  contro- 
verted, that  the  principle  has  been  established  by  adjudication, 
that  in  commercial  instruments  and  written  contracts  the  usage 
of  a  particular  trade,  profession,  or  place  may  be  proved  for 
the  purpose  of  ascertaining  the  meaning  of  certain  words,  the 
signification  of  which  may  be  doubtful.  It  is  not  to  be  denied 
that  if  a  word  has  acquired  a  peculiar  meaning  in  a  certain 
trade  or  business,  either  local  or  general,  that  meaning  will  be 
applied  to  it  in  the  construction  of  written  instruments  affect- 
ing the  transactions  growing  out  of  that  trade  or  business ; 
but  the  fact  that  the  word  has  acquired  such  meaning  must  be 
distinctly  proved  by  the  adduction  of  satisfactory  evidence ; " 
Allegre's  Adm'rs  v.  Md.  Ins.  Co.,  2  Gill  &  J.  137 ;  Taylor  v. 
Briggs,  2  Carr.  &  P.  525 ;  Murray  v.  Hatch,  6  Mass.  465 ;  Coit 
V.  Commercial  Ins.  Co.,  7  Johns.  385. 

"  And  it  is  apparent  that  the  tendency  of  the  American 
decisions  is  to  restrict,  rather  than  to  extend,  the  application  of 
the  principle  first  established  by  the  sanction  of  judicial  author- 
ity in  England,  and  subsequently  recognized  and  adopted  in 
this  country."  See  Linsley  v.  Lovely,  26  Vt.  123 ;  Girard 
Life  Ins.  Co.  v.  Mutual  Life  Ins.  Co.,  86  Pa.  St.  236;  S.  C. 

97  Id.  15. 

Another  qualification  of  this  rule  arises  where  it  is  presumed 
that  contracts  are  drawn  in  reference  to  the  usages  which  apply 
to  them.  "  Custom  or  usage  is  properly  received  to  ascertain 
and  explain  the  meaning  and  intention  of  the  parties  to  a  con- 
tract, whether  written  or  parol,  the  meaning  of  which  could 
not  be  ascertained  without  the  aid  of  such  extrinsic  evidence, 
and  such  evidence  is  used  on  the  theory  that  the  parties  knew 
of  the  existence  of  the  custom  or  usage  and  contracted  in  refer- 


872  WIGGLES WOKTH    V.    DALLISON. 

ence  to  it ";  Robinson  v.  U.  S.,  13  Wall.  363.  This  principle  is 
illustrated  in  a  great  variety  of  commercial  cases ;  Warren 
Bank  v.  Parker,  8  Gray  221;  Cook  v.  Walsh,  9  Allen  350; 
Have  V.  Hardy,  106  Mass.  329 ;  Scudder  v.  Bradbury,  Id.  422 ; 
Howard  v.  Im.  Co.,  109  Id.  384;  Porter  v.  Hills,  Id.  114,  Id. 
106;  Schnitzer  v.  Print  Works,  114  Id.  123;  Florence  Machine 
Co.  V.  Daggett,  135  Id.  582,  583 ;  Walls  v.  Bailey,  49  N.  Y. 
464;  Doaner  v.  Demhorn,  79  111.  131 ;  Fit/.simmons  v.  Academy, 
10  Mo.  App.  595;  Sontier  v.  Kellerman,  18  Mo.  509;  Martin  v. 
Hall,  26  Id.  386 ;  Freight  Co.  v.  Stannard,  44  Id.  71 ;  Walker 
V.  Barron,  6  Minn.  508;  Ilinton  v.  Coleman,  45  Wis.  465;  Steel 
Works  V.  Dewey,  37  Ohio  St.  242  ;  Barker  v.  Ben-zone,  48  Md. 
474,  492 ;  Lyon  v.  George,  44  Id.  295 ;  Hendrick  v.  Robinson, 
56  Miss.  694;  Dalton  v.  Daniels,  2  Hilton  (N.  Y.)  272;  :\Ic- 
Manes  v.  Donohue,  7  Alb.  L.  J.  411;  White  v.  Fuller,  4  Hun 
631 ;  McPherson  v.  Cox,  86  N.  Y.  472 ;  Ragland  v.  Butler,  18 
Gratt.  323  ;  Bryan  v.  Spurgin,  5  Sneed  681  ;  Perkins  v.  Jordan, 
35  Me.  23  ;  Folsam  v.  Marine  Ins.  Co.,  38  Id.  414 ;  Gleason  v. 
Walsh,  43  Id.  397 ;  Manett  v.  Brackett,  60  Id.  524 ;  Hursh  v. 
Chorth,  40  Pa.  St.  241 ;  Carter  v.  Coal  Co.,  77  Id.  286 ;  Cooper 
V.  Berry,  21  Ga.  526 ;  Loyd  v.  Wight,  20  Id.  574 ;  Morton  v. 
Morris,  31  Id.  378  ;  Garmany  v.  Rust,  35  Id.  108 ;  Mott  v.  Hall, 
41  Id.  117.  "A  person  who  deals  in  a  particular  market  must 
be  taken  to  deal  according  to  the  known,  genei'al  and  uniform 
custom  or  usage  of  that  market ;  and  he  who  employs  another 
to  act  for  him,  at  a  particular  place  or  market,  must  be  taken 
as  intending  that  the  business  to  be  done  will  be  done  accord- 
ing to  the  usage  and  custom  of  that  place  or  market,  whether 
the  principal  in  fact  knew  of  the  usage  or  custom  or  not ; " 
Bailey  v.  Bensley,  87  111.  556,  559 ;  Lyon  v.  Culberston,  83  Id.  33  ; 
United  States  Life  Ins.  Co.  v.  Advance  Co.,  80  Id.  549 ;  Cothran 
V.  Ellis,  107  Id.  413,  419 ;  Everingham  v.  Lord,  19  Bradw.  565, 
569.  See  Kraft  v.  Fancher,  44  Md.  204 ;  Barse  v.  Morton,  43 
Hun  479 ;  Bullock  v.  Finley,  28  Fed.  Rep.  514 ;  Neill  v.  Bil- 
lingsley,  49  Tex.  161 ;  Frederick  v.  Railroad  Co.,  37  Mich.  342 ; 
Leach  v.  Beardslee,  22  Conn.  404 ;  Grinman  v.  Walker,  9  Iowa 
426;  Bissell  v.  Ryan,  23  111.  571.  See  the  following  early 
cases :  Taylor  v.  Wells,  3  Watts  65 ;  Harrington  v.  Mc Shane, 
2  Id.  443 ;  Kemp  v.  Coughtry,  11  Johns.  107 ;  Galloway  v. 
Hughes,  1  Bailey  553 ;  Hosea  v.  McCrory,  12  Ala.  350,  353  ; 
U.  S.  V.  McDaniel,  7  Pet.  3,  15 ;  DeForest  v.  Fire  Ins.  Co.,  1 


WIGGLESWORTH   V.   DALLISON.  873 

Hall  84 ;  Ruan  v.  Gardner,  1  Wash.  C.  C.  146,  149 ;  Townsend 
V.  Whitby,  5  Harr.  55. 

In  many  of  the  above  cases  usage  was  admitted  in  evidence 
in  the  absence  of  express  contracts  and  of  circumstances  defi- 
nitely fixing  the  legal  rights  of  the  parties.  In  many  of  them 
•  also,  the  usage  was  reasonably  understood  as  forming  a  part  of 
an  express  contract.  Williams  v.  Gilman,  3  Greenl.  276  ;  Van 
Ness  V.  Packard,  2  Pet.  138 ;  Sewall  v.  Gibbs,  1  Hall  602 ;  Con- 
ner V.  Robinson,  2  Hill  (S.  C.)  .354.  See  further  Alabama  R.  R. 
V.  Kidd,  29  Ala.  226 ;  Dixon  v.  Dunham,  14  111.  322 ;  Barker  v. 
Brace,  3  Conn.  10,  13,  Ware  322 ;  Chase  v.  Washburn,  1  Ohio 
St.  252  ;  U.  S.  V.  Fillebrown,  7  Pet.  30,  50 ;  Clark  v.  Baker,  11 
Met.  186 ;  Bridgeport  Bank  v.  Dyer,  19  Conn.  136 ;  Barton  v. 
McKelway,  2  Zab.  165,  175 ;  Bank  of  Utica  v.  Smith,  18  Johns. 
280;  Thomas  v.  O'Hara,  1  Mill's  Const.  (S.  C.)  303,  308;  Con- 
sequa  v.  Willings,  1  Pet.  C.  C.  172,  225:  Wilcox  v.  Wood,  9 
Wend.  349. 

There  is  also  a  well-established  usage  in  relation  to  the  con- 
tract of  endorsement,  the  endorser  being  bound  without  per- 
sonal notice.  It  is  the  usage  of  particular  banks,  as  to  the  time 
of  demanding  payment  and  giving  notice,  although  differing 
from  the  time  fixed  by  the  general  law  merchant.  Bank  of 
Washington  v.  Triplett,  1  Pet.  25 ;  Cookendorfer  v.  Preston,  4 
How.  317,  326  ;  Adams  v.  Otterbach,  15  Id.  539  ;  Renner  v.  Bank 
of  Columbia,  9  Wheat.  582;  Mills  v.  Bank  of  U.  S.,  11  Id.  431 ; 
Bank  of  Columbia  v.  Fitzliugh,  1  Harr.  &  G.  239 ;  Jones  v. 
Fales,  245;  Lincoln  Bank  v.  Page,  9  Id.  155;  Blanchard  v.  Hil- 
liard,  11  Id.  85 ;  Pierce  v.  Butler,  14  Id.  303  ;  Dorchester  Bank 
V.  New  England  Bank,  1  Cush.  177, 188 ;  Kilgore  v.  Buckley,  14 
Conn.  363  •  Whitwell  v.  Johnson,  17  Mass.  549 ;  City  Bank  v. 
Cutter,  3  Pick.  414 ;  Chicopee  Bank  v.  Eager,  9  Met.  583.  For 
some  cases,  see  Halsey  v.  Brown,  3  Day  346 ;  Allen  v.  Mer- 
chants Bank,  22  Wend.  215;  Van  Santwood  v.  St.  John,  6  Hill 
158  ;  Cliven  v.  Screw  Co.,  23  How.  421. 

Contravention  of  rules  of  law.  —  It  is  laid  downi  as  a  general 
proposition  that  usage  is  never  admissiljle  to  vary  or  control  a 
general  principle  or  rule  of  law^  A  thorough  discussion  of  this 
subject  will  be  found  in  Barnard  v.  Kellogg,  10  Wall.  384  and 
Dickinson  v.  Gay,  7  Allen  29.  The  former  was  the  case  of  a 
sale  of  wool,  and  it  was  held  that  the  rule  of  caveat  emptor- 
applied,  evidence  being  inadmissible  of  an  implied  warranty  of 


874  WIGGLESWORTH    V.    DALLISON. 

the  seller  to  the  purchaser  that  wool  in  bales  is  not  falsely  or 
deceitfully  packed.  It  appears  that  the  parties  also  did  not 
know  of  the  custom.  Mr.  Justice  Davis  said,  "•  It  is  well  settled 
that  usage  cannot  be  allowed  to  subvert  the  settled  rules  of 
law.  AVhatever  tends  to  unsettle  the  law,  and  make  it 
different  in  the  different  communities  into  which  the  state 
is  divided,  leads  to  mischievous  consequences,  embarrasses 
trade,  and  is  against  public  policy.  If,  therefore,  on  a  given 
state  of  facts,  the  rights  and  •  liabilities  of  the  parties  to  a 
contract  are  fixed  by  the  general  principles  of  common  law, 
they  cannot  be  changed  by  any  local  custom  of  the  place 
where  the  contract  was  made.  In  this  case  the  common  law 
did  not  on  the  admitted  facts  imply  a  warranty  of  the  good 
quality  of  the  wool,  and  no  custom  in  the  sale  of  the  article 
can  be  admitted  to  imply  one  "  (p.  391).  See  also  Irwin  v.  Wil- 
liar,  110  U.  S.  499;  Allen  v.  St.  Louis  Bank,  120  U.  S.  20,  39. 

In  Massachusetts  the  law  is  in  luuinony  with  the  above  deci- 
sion. Dickinson  v.  Gay,  aupra,  was  the  case  of  a  sale  of  cases 
of  satinets  made  by  sam[)les.  There  was  in  both  samples  and 
goods  a  latent  defect  not  discoverable  by  inspection,  or  until 
the  goods  were  printed,  so  that  they  were  immerchantable. 
The  contention  that  there  was  a  warranty  implied  from  the 
sale  that  the  goods  were  merchantable  was  not  entertained  by 
the  court,  but  it  was  held  that  the  custom  that  a  warranty  was 
implied,  when  by  law  it  was  not  implied,  was  contrary  to  the 
rule  of  the  common  law  on  the  subject  and  therefore  void. 
See  Dodd  v.  Farlow,  11  Allen  426 ;  Hedden  v.  Roberts,  134 
Mass.  38. 

Evidence  is  inadmissible  to  show  a  custom  among  brokers  to 
charge  a  fee  to  both  parties.  Commonwealth  v.  Cooper,  130 
Mass.  285  ;  Farnsworth  v.  Hemmer,  1  Allen  494 ;  Raisin  v. 
Clark,  41  Md.  158.  So  of  the  practice  to  charge  fees  not  in 
law  taxable.  Celluloid  Manfg.  Co.  v.  Chandler,  27  Fed.  Rep. 
9  ;  Cutter  v.  Howe,  122  Mass.  541,  546,  549 ;  see  Common- 
wealth V.  Perry,  139  Mass.  198,  201. 

In  New  York  the  law  is  in  entire  harmony  with  the  above. 
Frith  V.  Barker,  2  Johns.  327  ;  Woodruff  v.  Merchants'  Bank, 
25  Wend.  673 ;  Beirne  v.  Dord,  5  N.  Y.  95 ;  Simmons  v.  Law,  3 
Keys  219;  West  v.  Kiersted,  15  W.  D.  549;  Babcock  v.  New 
York  Railroad  Co.,  20  Id.  477  ;  Wheeler  v.  Newbould,  16  N.  Y. 
392 ;  Higgins  v.  Moore,  34  Id.  417 ;   Corn  Exchange   Bank  v. 


WIGGLESWORTH   V.   DALLISON.  875 

Nassau  Bank,  91  Id.  74 ;  Case  v.  Perew,  34  Hun  130 ;  Wright 
V.  Boiler,  42  Hun  77,  80.  In  Pennsylvania  the  case  of  Snow- 
den  V.  Warder,  3  Rawle  101,  was  decided  in  contravention  of 
the  principle  above-stated ;  but  the  law  in  that  state  is  now  in 
harmony  with  that  of  Massachusetts  and  New  York.  Coxe  v. 
Heisley,  19  Pa.  St.  247;  Wetherill  v.  Neilson,  20  Id.  453. 
Upon  this  subject  see,  also,  Brown  v.  Jackson,  2  Wash.  C.  C.  24  ; 
U.  S.  V.  Buchanan,  8  How.  83,  102 ;  West  v.  Ball,  12  Ala.  340, 
347 ;  Dewees  v.  Lockhart,  1  Tex.  535,  537  ;  Rapp  v.  Palmer,  3 
Watts  178 ;  Sweet  v.  Jenkins,  1  R.  1. 150  ;  Beckwith  v.  Farnum, 
5  Id.  231 ;  Bissell  v.  Ryan,  23  111.  571 ;  Webster  v.  Granger,  78 
Id.  230;  Gifford  v.  Mc  Arthur,  55  Mich.  535;  Middleton  v. 
Heyward,  2  Nott  &  McC.  9,  3  Id.  121 ;  Singleton  v.  Hilliard,  1 
Strob.  203,  216 ;  Blakeslee  v.  Directors  of  the  Poor,  102  Pa.  St. 
274 ;  Ingiebright  v.  Hammond,  19  Ohio  337 ;  Antomarchi  v. 
Russell,  03  Ala.  356,  361 ;  Garrett  v.  Trabuc,  82  Ala.  227,  233 ; 
Ober  V.  Carson,  62  Mo.  209.  A  custom  that  a  party  having  a 
claim  for  money  due  upon  a  contract  may  not  sue  at  law,  is  in- 
valid, Manson  v.  Grand  Lodge,  30  Minn.  509;  Thompson  v.  Ins. 
Co.,  104  U.  S.  252 ;  Franklin  Ins.  Co.  v.  Humphrey,  65  Ind. 
54 ;  Spears  v.  Ward,  48  Id.  541 ;  Wallace  v.  Morgan,  23  Id. 
399;  Bauer  v.  Samson  Lodge,  102  Id.  262,  271.  A  custom  which 
would  excuse  a  corporation  from  acts  of  negligence  is  invalid. 
Chicago  &  Rock  Island  R.  R.  v.  Harmon,  12  Bradw.  54,  61 ; 
Transportation  Co.  v.  Storey,  50  Md.  4 ;  Miller  v.  Pendleton,  8 
Gray  547.  The  custom  of  "  ringing  up  "  among  brokers  and 
commission  merchants  which  has  been  held  to  be  valid  when  not 
in  contravention  of  the  law  is  stated  in  Ward  v.  Vosburgh,  31 
Fed.  Rep.  12  ;  Irwin  v.  Williar,  110  U.  S.  499.  Usage  is  not 
admissible  to  control  the  rules  of  law  as  to  the  mode  in  which 
a  loss  under  a  policy  shall  be  computed.  HoAvland  v.  India  Ins. 
Co.,  131  Mass.  239,  252 ;  Eager  v.  Atlas  Ins.  Co.,  14  Pick.  141 ; 
Thwing  V.  Great  Western  Ins.  Co.,  Ill  Mass.  93, 109  ;  Matheson 
V.  Equitable  Ins.  Co.,  118  Id.  209,  214 ;  Seccomb  v.  Provincial 
Ins.  Co.,  10  Allen  305.  But  see  Fulton  Ins.  Co.  v.  Milner,  23 
Ala.  420,  427. 

In  this  connection  the  following  words  from  Dickinson  v. 
Gay,  7  Allen  29,  36,  37  are  important.  In  most  cases  where  evi- 
dence of  a  usage  is  admitted,  the  reference  is  "  to  the  methods 
of  transacting  business,  and  not  to  the  mere  adoption  of  a  pecu- 
liar or  local  rule  of  law,  contrary  to  the  terms  of  the  contract 


876  WIGGLESWORTH    V.    DALLISOX. 

or  to  a  general  rule  of  law  applicable  to  its  construction.  But 
even  this  distinction  is  nice  and  will  not  reconcile  all  cases ; 
and  in  many  instances  a  usage  has  been  sustained  or  rejected 
on  the  ground  that  it  was  or  was  not  regarded  by  the  court  as 
reasonable  ;  and  the  question  whether  it  was  contradictory  to 
a  principle  of  law,  or  to  the  terms  or  legal  operation  of  a  con- 
tract, was  not  adverted  to." 

Effect  on  statutes.  —  It  is  a  general  rule  that  usage  cannot 
control  or  contradict  a  statute,  but  this  is  plainly  a  branch 
of  the  law  just  treated.  Where  there  is  explicit  statutory 
regulation  it  prevails.  Barnes  v.  Bakersfield,  57  Verm.  375; 
Dunham  v.  Dey,  13  Johns.  40;  Dunham  v.  Gould,  16  Id.  367; 
Albright  v.  County  of  Bedford,  106  Pa.  St.  582;  Hatcher  v. 
Comer,  73  Ga.  418,  421 ;  Osborne  v.  C.  N.  Xelson  Co.,  33  Minn. 
285;  Ingham  v.  Lindeman,  37  Ohio  St.  218;  Perkins  v.  Frank- 
lin Bank,  21  Pick.  483;  Rogers  v.  Allen,  47  N.  II.  529;  Mor- 
rison V.  Bailey,  5  Ohio  St.  13;  O'Connor  v.  North  Truckee  Co., 
17  Nev.  245,  258;  Rivers  v.  Burbank,  13  Id.  398;  Delaphme  v. 
Crenshaw.  Tlie  customary  interpretation  of  a  statute  is  some- 
times considered.  Cameron  v.  Bank,  37  Mich.  240;  Ilelmle  v. 
Life  Ins.  Co.,  61  Pa.  St.  107;  Governer  v.  Withers,  5  Giatt.  24. 
And  it  has  been  held  that  a  practical  construction  given  to  a 
statute  by  custom  is  equivalent  to  a  positive  law.  Commis- 
sioners V.  Bemting,  111  Ind.  143.  Generally  a  measure  of 
weight  established  by  statute  cannot  be  affected  by  usage. 
Evans  v.  Meyers,  25  Pa.  Stat.  114;  Green  v.  Moffet,  22  Mo. 
529.  But  see  Bonham  v.  Railroad  Co.,  13  S.  C.  267.  In  Cali- 
fornia the  statutes  recognize  customs  in  regard  to  the  location, 
etc.,  of  mining  claims.  Thompson  v.  Spray,  72  Cal.  528,  532 ; 
Colman  v.  Clements,  23  Id.  245 ;  Morton  v.  Solambo  Co.,  26  Id. 
527,  534 ;  Original  Co.  v.  Winthrop  Co.,  60  Id.  631 ;  Harvey 
V.  Ryan,  42  Id.  626  ;  Bradley  v.  Lee,  38  Id.  362.  Usage  is  no 
defence  to  an  indictment  for  crime.    Bankers  v.  State,  4  Ind.  113. 

Requisites  of  valid  usage. —  If  otherwise  unobjectionable, 
usage  is  only  admissible  when  certain,  reasonable,  and  suffi- 
ciently ancient  to  afford  a  presumption  that  it  is  generally 
known.  U.  S.  v.  Buchanan,  8  How.  102;  The  Titania,  19  Fed. 
Rep.  101 ;  Blakemore  v.  Heyman,  23  Id.  648 ;  Byrne  v.  Massa- 
soit  Packing  Co.,  137  Mass.  313  ;  Phoenix  Ins.  Co.  v.  Frissell, 
142  Id.  513,  515;  Sterling  Organ  Co.  v.  House,  25  W.  Va. 
64,  96 ;  Janney  v.  Boyd,  30  Minn.  319 ;  Wilson  v.  Bauman,  80 


WIGGLESWORTPI    V.    D ALLISON.  377 

111.  493;  Jones  v.  "Wagner,  (SQ  Pa.  St.  449;  Farmers'  Bank  v. 
Champlain  Co.,  23  Vt.  186,  193;  Munn  v.  Ikuvb,  ±3  111.  356; 
Johnson  v.  Railroad,  46  N.  H.  213  ;  I.  &  G.  11.  R.  Co.  v.  Has- 
sell,  62  Tex.  256.  If  the  usage  is  not  actually  known  to  the 
contracting  parties  it  must  "be  so  well  settled,  so  uniformly 
acted  upon,  and  so  long  continued,  as  to  raise  a  fair  presump- 
tion that  it  was  known  to  both  contracting  parties,  and  that 
they  contracted  in  reference  thereto."  Walls  v.  Bailey,  49 
N.  Y.  464,  474;  Bank  v.  Erie  Railroad  Co.,  72  N.  Y.  188; 
Jacob  V.  Storey,  48  N.  H.  100;  Rindskoff  v.  Barrett,  14  la. 
101;  Couch  V.  Watson  Coal  Co.,  46  Id.  17;  Rafert  v.  Scrog- 
gins,  40  Ind.  195;  Lamb  v.  Klaus,  30  Wis.  94;  Castleman  v. 
Life  Ins.  (^o.,  14  Bush  197;  Lowe  v.  Lehman,  15  Ohio  St.  179; 
Randall  v.  Smith,  63  Me.  105;  Isaksson  v.  Williams,  26  Fed. 
Rep.  642,  645.  A  widespread  and  established  use  has  at  least 
a  tendency  to  show  knowledge.  Croucher  v.  Wilder,  98 
Mass.  322;  Howard  v.  Great  Western  Ins.  Co.,  109  Id.  384; 
Mooney  v.  Howard  Ins.  Co.,  138  Id.  375.  Parties  engaged 
in  a  particular  business,  or  persons  accustomed  to  deal  with 
them,  may  be  presumed  to  have  knowledge  of  the  uniform 
course  of  such  business.  Hence  its  usages,  in  the  absence  of 
agreement  to  the  contrary,  may  be  supposed  to  have  entered 
into  the  contract  in  relation  to  such  business.  Morning  Star 
V.  Cunningham,  110  Ind.  328,  335;  Florence  Machine  Co.  v. 
Daggett,  135  Mass.  582;  Talcott  v.  Smith,  142  Id.  542,  544, 
Rogers  v.  Holden,  Id.  196;  Fitzsimmons  v.  Academy,  81  Mo. 
37  ;  East  Tennessee  R.  R.  Co.  v.  Johnston,  75  Ala.  596 ;  Carter 
V.  Coal  Co.,  77  Pa.  St.  286;  Lyon  v.  George,  44  Ind.  301.  Gen- 
erally in  case  of  local  customs  actual  knowledge  must  be 
brought  home  to  a  party  in  order  to  bind  him.  Scott  v.  Meier, 
56  Mich.  554  ;  Flatt  v.  Osborne,  33  Minn.  98 ;  Thompson  v. 
Minneapolis  R.  R.  Co.,  35  Id.  428 ;  Gregg  v.  Garverick,  33 
Ivans.  190, 193  ;  Walsh  v.  Frank,  19  Ark.  270  ;  Marlett  v.  Clary, 
20  Ark.  251 ;  Collins  v.  New  England  Iron  Co.,  115  :Mass.  23  : 
Sawtelle  v.  Drew,  122  Id.  228;  Stevens  v.  Reeves,  9  Pick. 
197 ;  Hermann  i\  Niagara  Fire  Ins.  Co.,  100  N.  Y.  411 ;  Little 
V.  Fargo,  43  Hun  233 ;  Winsor  v.  Dillaway,  4  Met.  221 ;  Wal- 
lace V.  Morgan,  23  Ind.  399. 

To  be  valid,  a  custom  must  be  general,  uniform,  and  certain. 
Singleton  v.  Hilliard,  1  Strob.  203,  216;  Potts  v.  Aechternacht, 
93  Pa.  St.  138;  Bissell  v.  Ryan,  23  111.  bm,  571;    Barton  v. 


878  WIGGLESWOETH   V.   DALLISON. 

McKelway,  2  Zab.  1(35,  175 ;  Pevey  v.  Schulenburg,  33  Minn. 
45,  47.  The  requirement  tluit  a  usage  must  be  reasonable  is 
imperative.  "  Perhaps  there  can  be  no  better  evidence  of  the 
reasonableness  of  a  custom  than  its  antiquity  and  uninterrupted 
prevalence."  Baxter  v.  Rodman,  3  Pick.  435,  43*J.  In  the 
following  eases  usages  were  held  unreasonable.  Mulliner  v. 
Bronson,  14  Bradw.  355;  Ilaskins  v.  Warren,  115  Mass.  514; 
St.  Andrew  v.  Mauchaug  M'f'g  Co.,  134  Id.  42 ;  Smith  v. 
Wright,  1  Cai.  43 ;  Reed  v.  Richardson,  98  Mass.  216 ;  Whit- 
ney V.  Essen,  99  Id.  308;  Farnsworth  v.  Harmer,  1  Allen  494; 
Commonwealth  v.  Cooper,  130  Mass.  285 ;  Stoney  v.  Transpor- 
tation Co.,  17  Hun  579;  Wadley  v.  Davis,  63  Barb.  500  ;  Ful- 
ler V.  Robinson,  86  N.  Y.  306 ;  Lehman  v.  Marshall,  47  Ala. 
362 ;  liank  v.  Bank,  51  Md.  128 ;  Mills  v.  Ashe,  16  Tex.  296 ; 
People  V.  Gold  Run,  &c.,  Co.,  66  Cal.  138  ;  Strong  v.  Railroad, 
15  Mich.  206 ;  Harrington  v.  Edwards,  17  Wis.  586 ;  Lord  v. 
Botsford,  26  Fed.  Rep.  651  ;  Anewalb  v.  Hummel,  109  Pa.  St. 
271.  See  St.  Louis  R.  R.  Co.  v.  Southern  Express  Co.,  117 
U.  S. ;  Liverpool  Steam  Co.  v.  Saitter,  17  Fed.  Rep.  695 ;  Liver- 
pool Steam  Co.  v.  Saitter,  22  Id.  560 ;  Harlan  v.  Ely,  68  Cal. 
522,  527.  It  has  been  held  that  a  usage  may  be  shown  that 
gratuities  or  "  scale  moneys "  are  considered  as  part  of  the 
compensation  of  hostlers  at  hotels.  Jonsson  ik  Thompson,  97 
N.  Y.  642.  Evidence  of  the  usage  of  the  shipper  to  bed  the 
car  is  admissible  to  explain  the  intention  of  the  parties  in  mak- 
ing a  special  agreement.  East  Tenn.  R.  R.  Co.  v.  Johnston, 
75  Ala.  596,  604.  See,  also,  Kinney  v.  South  &  North  Railroad 
Co.,  82  Id.  368 ;  Stoudenmire  v.  Harper,  81  Id.  242.  Evidence 
has  been  admitted  of  shippers  as  to  the  delivery  of  freight  for 
shipment.  Montgomery  Railway  Co.  v.  Kolb,  73  Ala.  396. 
Some  late  cases  in  which  evidence  of  usage  was  admitted  are 
Jones  V.  Haly,  128  Mass.  585 ;  Florence  Machine  Co.  v.  Daggett, 
135  Id.  582,  583,  and  cases  cited;  McCullough  v.  Hellweg, 
66  Md.  269,  275;  Lansing  v.  Johnson,  18  Nebr.  174;  Brown 
Chemical  Co.  v.  Arkinson,  91  No.  Car.  389;  Wear  v.  Sanger, 
91  Mo.  348,  356  ;  Scudder  v.  Ames,  89  Id.  496,  508 ;  Tibby  v. 
Missouri  Pacific  R.  R.  Co.,  82  Id.  292;  Smythe  v.  Parsons,  37 
Kan.  79 ;  Newhall  v.  Langdon,  39  Ohio  St.  87,  95  ;  Steel  Works 
V.  Dewey,  37  Id.  242.  It  has  been  held  in  Illinois  that  it  is 
well  known  to  all  dealing  in  whiskey  warehouse  receipts,  that 
in  purchasing  them  the  warehouse  and  not  the  seller  is  looked 


WIGGLESWORTH    V.   DALLISON.  879 

to  as  the  responsible  party.  ]\Iida  v.  Geissman,  17  Bradw.  207, 
211. 

Evidence.  —  Usage  is  proved  by  witnesses  testifying  of  its 
existence  and  uniformity  from  their  knowledge  obtained  by 
observation  of  what  is  j^ractised  by  themselves  and  others  in 
the  trade  to  which  it  relates.  But  their  conclusions  or  infer- 
ences as  to  its  effect,  either  upon  the  contract  or  the  legal  title 
or  rights  of  parties,  are  not  competent  to  show  the  character  or 
force  of  the  usage.  Neither  is  it  competent  for  them  to  testify 
what  is  the  understanding  of  others  in  regard  to  its  effect.  The 
effect  is  to  be  determined  In'  the  court,  or  by  the  jury  under  its 
direction.  Haskins  v.  Warren,  115  Mass.  514,  535;  Gallup 
V.  Lederer,  1  Hun  282 ;  Southwestern,  &c.,  Co.  v.  Stanard, 
44  :\Io.  71  ;  Jewell  v.  Center  &  Co.,  25  Ala.  498 ;  Gary  v. 
Meagher,  33  Id.  G30 ;  Texas  Banking  Co.  v.  Hutchins,  53 
Tex.  61. 

Custom  cannot  contradict  a  fact  plainly  proved  by  positive 
testimony.  I.  &  G.  N.  R  y  Co.  v.  Gilbert,  64  Tex.  536,  541. 
Evidence  of  a  usage  should  never  be  admitted  "until  the  party 
offering  it  has  distinctly  stated  to  the  Court  what  he  intends  to 
prove."  Susquehanna  Fertilizer  Co.  v.  White,  Q6  Md.  444,  457. 
Evidence  of  the  uniform  and  general  custom  in  like  cases  is 
sometimes  competent,  although  not  conclusive,  upon  the  ques- 
tion whether  a  use  is  a  reasonable  one.  Red  River  Mills  v. 
Wright,  30  ]\Iinn.  249,  254.  But  the  testimony  of  the  same 
witness  as  to  his  conduct  and  the  result  of  it  in  other  cases  is 
immaterial.  Lane  v.  Boston  &  Albany  Railroad  Co.,  112  Mass. 
455  .  Lewis  v.  Smith,  107  Id.  334 :  City  Council  v.  Montgomery, 
79  Ala.  233,  245.  Usage  is  sometimes  resorted  to  to  raise  a 
primd  facie  presumption  of  fact  in  aid  of  collateral  testimony. 
Knickerbocker  Ins.  Co.  v.  Pendleton,  115  U.  S.  340. 

It  has  been  held  that  the  testimony  must  be  ample  to  esta]> 
lish  a  usage.  Frith  v.  Barker,  2  Johns.  327.  Some  of  the 
authorities  hold  that  a  usage  cannot  be  established  by  the  tes- 
timon}'  of  a  single  Avitness.  Bissell  v.  Ryan,  23  111.  566,  571 ; 
Wood  V.  Hickok,  2  Wend.  501 ;  Holwerson  v.  Cole,  1  Spears 
(S.  C.)  321.  But  the  weight  of  the  authority  is  the  other  way. 
Robinson  r.  U.  S.,  13  Wall.  363,  366;  Marston  v.  Bank,  10 
Ala.  284  ;  Partridge  v.  Forsyth,  29  Ala.  200.  "  Notwithstand- 
ing the  dictum  in  Boardman  v.  Spooner,  13  Allen  353,  359, 
there  can  be  no  doubt  at  the  present  day  that  the  circumstances 


880  WIGGLESWORTH    V.    DALLISON. 

that  but  one  witness  testifies  to  a  usage  is  important  only  as 
bearing  upon  the  credibility  and  satisfactoriness  of  his  testi- 
mony in  point  of  fact,  and  does  not  affect  its  competency  or  its 
sufficiency  as  matter  of  law."  Jones  v.  Hoey,  128  Mass.  585  ; 
Wootters  v.  Kauffman,  67  Tex.  488,  403 ;  Vail  v.  Rice,  o  X.  Y. 
156.  See  Treadway  v.  Shannon,  7  Nev.  37.  Testimony  that 
one  knew  what  had  been  the  custom  for  several  years  is  insuf- 
ficient. Smith  V.  Rice,  56  Ala.  417.  Usages  must  be  pleaded. 
Liggatt  V.  Withers,  5  Gratt.  24 ;  Sullivan  v.  House,  2  Col. 
424 ;  Lewis  v.  McClure,  8  Oreg.  273 ;  Overman  v.  Bank,  31 
N.  J.  (Law)  563. 

Li  regard  to  the  burden  of  proof  the  general  rule  of  course 
is  that  he  who  sets  up  anything  must  prove  it,  although,  as  we 
have  alread}^  seen,  it  is  sufficient  in  most  cases  if  it  is  shown 
that  the  usage  was  presumptively  known  to  both  parties.  See 
Loveland  v.  Burke,  120  Mass.  139  ;  Harris  v.  Turnbridge,  83 
N.  Y.  92 ;  Scott  v.  Whitney,  41  Wis.  504 ;  Power  v.  Kane,  5  Id. 
265;  Irish  v.  Railroad,  19  Minn.  376 :  N.  Y.  Iron  Mine  v.  Bank, 
44  Mich.  344;  Bentley  v.  Daggett,  51  Wis.  224;  Murray  v. 
Spencer,  24  Md.  520 ;  Fisher  v.  Sargent,  10  Cush.  250  ;  Fletcher 
V.  Seekell,  1  R.  I.  267.  Sometimes  the  violation  of  a  usage  is 
evidence  of  negligence.  Sampson  v.  Hand,  6  Whart.  311,  324. 
See  also  Cook  v.  Champlaiu  Co.,  1  Den.  92,102;  Bradford  v. 
Drew,  5  Met.  88 ;  Maxwell  v.  Eason,  1  Stew.  &  P.  514 ;  Cheno- 
with  V.  Dickenson,  8  B.  Mon.  156 ;  Barber  v.  Brace,  3  Conn.  9. 
But  generally  custom  cannot  be  set  up  to  show  that  negligence 
does  or  does  not  exist;  it  must  be  determined  by  the  facts  of 
the  case.  G.  C.  &  Santa  Fe  R'y  Co.  v.  Evanrich,  61  Tex.  36. 
Established  usage  not  to  tranship  is  not  rebutted  by  bill  of  lad- 
ing reserving  right  of  transshipment.  Schroeder  v.  Schroelzer, 
66  Cal.  294,^298. 

Court  and  the  jury.  —  The  question  of  the  existence  of  a  usage 
is  for  the  jury ;  of  its  validity,  for  the  Court.  Knickerbocker 
Life  Ins.  Co.  v.  Pendleton,  115  U.  S.  339,  344,  345 :  Huston  v. 
Peters,  1  Met.  (Ky.)  558  ;  Chicago  Packing  Co.  v.  Tilton,  87 
111.  547  ;  Steele  v.  McTyer,  31  Ala.  667  ;  SulUvan  v.  Jernigan, 
21  Flor.  264,  278  ;  Elder  v.  Railroad  Co.,  13  S.  C.  279.  "  There 
does  not  seem  to  be  entire  harmony  in  the  decisions  of  other 
states  as  to  whether  the  reasonableness  of  a  custom  is  to  be 
determined  by  the  Court,  or  whether  it  is  a  question  for  the 
jury."     Mulliner  v.  Bronson,  14  Bradw.  355,  364. 


WIGGLESWORTH    V.    DALLISON.  881 

Private  usage.  —  The  practice  and  usage  of  a  party  has  effect 
if  expressly  made  part  of  the  terms  of  the  contract  or  if  shown 
to  have  been  known  to  the  other  party  and  assented  to  by  liim. 
Hursh  V.  North,  40  Pa.  St.  241  ;  Railroad  Co.  v.  Nash,  43  Ind. 
423 ;  iNIarshall  v.  Express  Co.,  7  Miss.  1 ;  Hooper  v.  Railroad, 
27  Id.  81  ;  Boody  v.  Stone,  24  Vt.  660  ;  Stevens  v.  Smith,  21 
Id.  90  ;  Bank  v.  Wallace,  13  S.  C.  347 ;  Silk  Co.  v.  Fair,  112 
Mass.  354 ;  Veiths  v.  Hagge,  8  la.  163  ;  Railroad  v.  Murray,  72 
111.  128.  But  gtMierally  mere  personal  modes  of  dealing  cannot 
be  set  up  as  customs.  Powell  v.  Thompson,  80  Ala.  51,  55  ; 
Burr  V.  Sickles,  17  Ark.  428,  434.  The  practice  of  a  local  office 
of  a  telegraph  company  cannot  vary  the  terms  of  the  contract 
under  which  the  message  is  sent.  Grinnell  v.  W.  U.  Tel.  Co., 
113  Mass.  299.  See  furthur  Eureka  Ins.  Co.  v.  Robinson,  26 
Pa.  St.  256,  265;  Meighen  v.  Bank,  25  Id.  288;  Burger  v. 
Mutual  Ins.  Co.,  71  Id.  422,  Vaughan  v.  Railroad,  63  N.  C. 
11 ;  Loring  v.  Gurney,  5  Pick.  16  ;  McDowell  v.  Ingersoll,  5  S. 
&  R.  101 ;  Knox  V.  Rives,  14  Ala.  249,  257.  As  to  the  author- 
ity of  an  assistant  teller  to  certify  checks,  see  Hill  v.  Nation 
Trust  Co.,  108  Pa.  St.  1. 

Various  points.  —  The  custom  in  Wigglesworth  v.  Dallison  is 
recognized  in  Pennsylvania.  Forsythe  v.  Price,  8  Watts  282, 
and  cases  cited ;  Denis  v.  Rossler,  1  P.  &  W.  224 ;  Iddings  v. 
Nagle,  2  W.  &  S.  22.  Also  in  other  states.  Nellons  v.  Truax, 
6  Ohio  St.  97 ;  Van  Dorens  v.  Everitt,  2  South  460 ;  Dorsey  v. 
Eagle,  7  CI  ill  321.  As  to  wheat  but  not  as  to  oats  in  Delaware, 
Templeman  v.  Biddle,  1  Ilarr.  522.  As  to  Virginia,  see  Harris 
V.  Carson,  7  Leigh  632,  639.  As  to  usages  and  customs  in 
Louisiana  before  acquisition,  see  Slidell  v.  Grandgian,  111 
U.  S.  412. 

The  usage,  as  has  been  previously  stated,  must  be  shown  to 
be  well  established,  uniform,  general  and  notorious.  The  evi- 
dence therefore  must  show  a  series  of  similar  transactions.  A 
single  instance  will  not  suffice.  Berkshire  Woolen  Co.  v.  Proc- 
tor, 7  Cush.  422 ;  Dean  v.  Swoop,  2  Binney  72  ;  Cope  v.  Dodd, 
13  Penn.  St.  37.  In  Indiana  it  is  held  requisite  that  the  custom 
l)e  shown  to  prevail  all  over  the  state  regarded  as  a  single 
locality.  Harper  v.  Poand,  10  Ind.  32 ;  Rafert  v.  Scroggins, 
40  Id.  195  ;  Spears  v.  Ward,  48  Id.  541.  And  the  testimony 
to  prove  the  usage  must  be  positive  and  certain.  It  is  there- 
fore improper  to  admit  evidence  that  it  was  not  the  custom  to 


882  WIGGLESWORTH    V.    DALLISON. 

make  certain  contracts  at  a  certain  place.  Goodfellow  v.  Mee- 
gan,  32  Mo,  280.  And  if  the  latest  knowledge  of  the  witness 
was  acquired  more  than  a  year  prior  to  the  transaction  in  ques- 
tion, his  testimony  should  be  excluded.  Hale  v.  Gibbs,  43  Iowa, 
380.  Contracting  parties  are  not  bound  by  local  usages  of  other 
places  unless  they  are  referred  to  or  made  a  part  of  the  contract. 
Cobb  V.  Limerock,  &c.,  Ins.  Co.,  58  Me.  326  ;  Union  Bank  v. 
Union  Ins.  Co.,  Dudley  (S.  C.)  171.  Nor  will  it  be  permitted 
to  import  by  implication  a  local  usage  of  one  place  into  a  con- 
tract made  at  another.  Parkhurst  v.  Gloucester  Ins.  Co.,  100 
Mass.  301 ;  Cobb  v.  Limerock,  &c.,  Ins.  Co.,  58  jNIe.  32G  ;  Strong 
V.  King,  35  111.  9  ;  Nichols  v.  DeWolf,  1  R.  I.  277.  And  if  a 
usage  which  the  courts  would  not  enforce,  suth  as  a  sale  of  a 
customer's  stock  without  notice  to  him  upon  his  failure  to  fur- 
nish sufficient  margin  at  the  stock  exchange,  be  agreed  to  in 
writing  by  the  customer,  it  will  be  upheld  as  to  him.  Baker  v. 
Drake,  66  N.  Y.  518. 


MOSS  v.    GALLIMORE  AND  ANOTHER. 


MICHAELMAS.  — 20  GEO.  3. 
[reported  dougl.  279.] 

A  mortgagee,  after  giving  notice  of  the  mo7'tgage  to  a  tenant  in 
possessioji,  under  a  lease  prior  to  the  mortgage,  is  entitled  to 
the  rent  in  arrear  at  the  time  of  the  notice,  as  well  as  to  what 
accrues  afterivards,  and  he  may  distrain  for  it  after  such 
notice. 

In  a  notice  for  the  sale  of  a  distress,  it  need  not  he  mentioned 
lohen  the  rent  fell  due  (jci). 

Ix  an  action  of  trespass,  which  was  tried  before  Nares,  Justice, 
at  the  last  assizes  for  Staffordshire,  on  not  guilty  pleaded,  a 
verdict  was  found  for  the  plaintiff,  subject  to  the  opinion  of 
the  court,  on  a  case  reserved.  The  case  stated  as  follows  :  One 
Harrison  being  seized  in  fee,  on  the  first  of  January,  1772,  de- 
mised certain  premises  to  the  plaintiff  for  twenty  years,  at  the 
rent  of  40/.,  payable  yearly  on  the  12th  of  j\Iay ;  and  in  May, 
1772,  he  mortgaged  the  same  premises,  in  fee,  to  the  defendant, 
Mrs.  Gallimore.  Moss  continued  in  possession  from  tlie  date  of 
the  lease,  and  paid  his  rent  regularly  to  the  mortgagor  all  but 
28/.  which  was  due  on  and  before  the  month  of  November,  1778, 
when  the  mortgagor  became  a  bankrupt,  being  at  the  time  in- 
debted to  the  mortgagee  in  more  than  that  sum  for  interest  on 
the  mortgage.  On  the  3rd  of  January,  1779,  one  Harwar  went 
to  the  plaintiff,  o"i  behalf  of  Gallimore,  showed  him  the  mort- 
■gage  deed,  and  demanded  from  him  the  rent  then  remaining 
unpaid.     This  was  the  first  demand  that  Gallimore  made  of  the 

(^«)  A  man  is  not  bound  by  his  \^PhiUips  v.  Whitsed,  2  E.  &  E.  804.] 
notice  of  distress,  C'rotcther  v.  Rams-  A  notice  of  distress  must  be  in  writ- 
bottom,  7  T.  R.  654,  per  Lord  Kenyon,       ing,  Wilson  v.  Xujhtinfjale,  8  Q.  B.  1034. 

S83 


884  MOSS    V.    GALLIMOKE. 

rent.  The  plaintiff  told  Harwar  that  the  assignees  of  Harrison 
had  demanded  it  before,  viz.,  on  the  31st  of  December ;  but, 
when  Harwar  said  that  Gallimore  would  distrain  for  it  if  it  was 
not  paid,  he  said  he  had  some  cattle  to  sell,  and  hoped  she 
would  not  distrain  till  they  were  sold,  when  he  would  pay  it. 
The  plaintiff  not  having  paid  according  to  this  undertaking, 
the  other  defendant,  by  order  of  Gallimore,  entered,  and  dis- 
trained for  the  rent,  and  thereupon  gave  a  Avritten  notice  of 
such  distress  to  the  plaintiff,  in  the  following  words :  "  Take 
notice,  that  I  have  this  day  seized  and  distrained,  &c.,  by  virtue 
of  an  authority,  &c.,  for  the  sum  of  28L,  being  rent,  and  arrears 
of  rent,  due  to  the  said  Esther  Gallimore,  at  INIichaelmas  last 
past,  for,  &c.,  and  unless  you  pay  the  said  rent,  &c."  He  ac- 
cordingly sold  cattle  and  goods  to  the  amount  of  221.  2s.  The 
question  stated  for  the  opinion  of  the  court  was,  whether, 
under  all  the  circumstances,  the  distress  could  be  justified? 

Wood  for  the  plaintiff.     Boiver  for  the  defendants. 

Wood.  —  The  plaintiff's  case  rests  upon  two  grounds :  1st, 
The  defendant,  Gallimore,  not  being,  at  the  time  when  the  rent 
distrained  for  became  due,  in  the  actual  seisin  of  the  premises, 
nor  in  the  receipt  of  the  rents  and  profits,  she  had  no  right  to 
distrain.  2nd.  The  notice  was  irregular,  being  for  rent  due  at 
Michaelmas,  whereas  this  rent  was  only  due  and  payable  in 
May.  —  1.  Before  the  statute  of  4  Anne,  c.  16  (a),  a  convey- 
ance by  the  reversioner  was  void  without  the  attornment  of  the 
tenant  (5),  which  was  necessary  to  supply  the  place  of  livery  of 
seisin.  Since  that  statute  I  admit  that  attornment  is  no  longer 
necessary  to  give  effect  to  the  deed ;  but  it  does  not  follow 
from  thence,  that  a  grantee  has  now  a  right  to  distrain,  before 
he  turns  his  title  into  actual  possession.  The  mortgagor 
(according  to  a  late  case  (^O)'  is  tenant  at  will  to  the  mort- 
gagee, and  has  a  right  to  the  rents  and  profits  due  before  his 
will  is  determined.  Nothing  in  this  case  can  amount  to  a 
determination  of  the  will,  before  the  demand  of  the  rent  on 
behalf  of  the  mortgagee,  and  the  whole  of  that  for  which  the 
distress  was  made  became  due  before  the  demand.  If  the 
mortgagor  himself  had  been  in  possession,  he  could  not  have 
been  turned  out  by  force :  the  mortgagee  must  have  brought 
an  ejectment.     The  assignees  had  called  upon  the  plaintiff  for 

(a)  Sect.  9.  (c)  Keech  v.  Hall,  M.   19,   Geo.  3, 

(&)  Co.  Litt.  309,  a.  b.  ante,  p.  546. 


MOSS   V.    GALLIMORE.  .  885 

the  rent  as  well  as  Gallimore,  and  how  could  he  take  upon  him- 
self to  decide  between  them?  The  mortgagee  should  have 
brought  an  ejectment,  when  any  objection  there  might  have 
been  to  the  title  could  have  been  discussed.  It  does  not  appear 
from  the  case,  that  the  interest  in  arrear  had  ever  been  de- 
manded of  the  mortgagor,  and  there  is  a  tacit  agreement  that 
the  mortgagor  shall  continue  in  possession  and  receive  the  rents 
till  default  is  made  in  paying  the  interest.  2.  The  notice  is 
irregular,  and,  on  that  account,  the  distress  cannot  be  justified. 
By  the  common  law,  the  goods  could  not  be  sold.  The  power 
to  sell  was  introduced  by  the  statute  of  William  and  ]\lary  (a)  ; 
but  it  is  thereb}'  required  that  notice  shall  be  given  thereof, 
"  with  the  cause  of  taking,"  &c.  These  requisites  are  in  the 
nature  of  conditions  precedent,  and,  if  not  complied  with,  the 
proceedings  are  illegal.  It  is  true,  this  irregularity,  since  the 
statute  of  11  Geo.  2  (J),  does  not  make  the  defendants  tres- 
passers ah  initio^  but  the  action  of  trespass  is  still  left  by  that 
statute,  for  special  damages  incurred  in  consequence  of  the 
irregularity  (c). 

Lord  Mansfield  observed,  that  the  defendant  was  precluded 
by  the  case  from  going  for  special  damages  arising  from  any 
supposed  irregularity  in  the  sale,  no  such  special  damages  being 
found,  and  the  question  stated  being  only,  whether  the  distress 
was  justifiable ;  and  BuUe/\  Justice,  said  that  it  was  not  neces- 
sary, by  the  statute  of  William  and  jNIary,  to  set  forth  in  the- 
notice  at  what  time  the  rent  became  due. 

Bower.  —  If  the  law  of  attornment  remained  still  the  same  as. 
it  was  at  common  law,  the  conversation  stated  to  have  taken 
place  between  the  plaintiff  and  Harwar  would  amount  to  an 
attornment ;  and,  when  there  has  been  an  attornment,  its  opera- 
tion is  not  restrained  to  the  time  when  it  was  made :  it  relates 
back  to  the  time  of  the  conveyance,  and  makes  part  of  the  same 
title ;  like  a  feoffment  and  livery,  or  a  fine  or  recovery  and  the 
deed  declaring  the  uses ;  Long  v.  Hemming  (^rf).  Now,  how- 
ever, any  doubts  there  might  have  been  on  this  subject  are- 
entirely  removed  by  the  statute  of  Queen  Anne,  the  words  of 
'which  are  very  explicit,  viz.  (<;)  :  "  that  all  grants  or  conveyances 

(a)  2  W.  &  M.  Sess.  1,  c.  5,  s.  2.  •     (cT)  1  Anders.  256.     Vide  S.  C  Cro.. 

(6)  Cap.  19,  s.  19.  El.  209. 
(c)  See  on  this  point,  ajite  [in  note  (e)  4  Anne,  cap.  16,  s.  9. 

to  Six  Carpenters'  case]. 


386  .  MOSS   V.   GALLIMORE. 

of  any  manors,  rents,  reversions,  or  remainders,  shall  be  as  good 
and  effectual  to  all  intents  and  purposes,  without  any  attorn- 
ment of  the  tenants,  as  if  their  attornment  had  been  had  and 
made."  The  proviso  in  the  same  statute  (a),  which  says,  that 
the  tenant  shall  not  be  prejudiced  by  the  payment  of  any  rent 
to  the  grantor  before  he  shall  have  received  notice  of  the 
grant,  shows,  that  it  was  meant  that  all  the  rent  which  had  not 
been  paid  at  the  time  of  the  notice  should  be  payable  to  the 
grantee.  The  mortgagor  is  called  a  tenant  at  will  to  the  mort- 
gagee. That  may  be  true  in  some  respects,  but  it  is  more 
correct  to  consider  him  as  acting  for  the  mortgagee  in  the  re- 
ceipt of  the  rents  as  a  trustee,  subject  to  have  his  authority  for 
that  purpose  put  an  end  to,  at  whatever  time  the  mortgagee 
pleases.  It  is  said,  the  proper  method  for  the  mortgagee  to 
have  followed  would  have  been  to  have  brought  an  ejectment, 
but  it  is  only  a  very  late  practice  to  allow  a  mortgagee  to  get 
into  the  possession  of  the  rents,  by  an  ejectment  against  a  ten- 
ant under  a  lease  prior  to  the  mortgage  (6).  The  interest,  it  is 
said,  is  not  stated  to  have  been  demanded:  but  the > case  states, 
that,  at  the  time  of  the  notice  and  distress,  more  than  the 
amount  of  the  rent  in  arrear  was  due.  It  is  said  the  tenant 
could  not  decide  between  the  mortgagor  (or,  which  is  the  same 
thing,  his  assignees)  and  the  mortgagee ;  but  that  is  no  excuse. 
He  would  have  had  the  same  difficulty  in  the  case  of  an  abso- 
lute sale ;  a  mortgage  in  fee  being,  at  law,  a  complete  sale,  and 
only  differing  from  it  in  respect  of  the  equity  of  redemption, 
which  is  a  mere  equitable  interest. 

The  Court  told  him  it  was  unnecessary  for  him  to  say  any- 
thing on  the  other  point. 

Lord  Mansfield.  —  I  think  this  case,  in  its  consequences,  very 
material.  It  is  the  case  of  lands  let  for  years  and  afterwards 
mortgaged,  and  considerable  doubts,  in  such  cases,  have  arisen 
in  respect  to  the  mortgagee  when  the  tenant  colludes  with  the 
mortgagor ;  for  the  lease  protecting  the  possession  of  such  a 
tenant,  he  cannot  be  turned  out  by  the  mortgagee.  Of  late 
years  the  courts  have  gone  so  far  as  to  permit  the  mortgagee  to 
proceed  hy  ejectmetit.,  if  he  has  given  notice  to  the  tenant  that  he 
does  not  intend  to  disturb  his  possession,  hut  only  requires  the  rent 

(a)  Sect.  10.  no  longer  exists.     See  note  to  Keech 

(6)  Wliite  V.  Haiokins,  M.  19  Geo.       v.  Hall,  ante. 
3.    This  practice  was  anomalous,  and 


MOSS   V.    GALLIMOKE.  887 

to  he  paid  to  him,  and  not  the  mortgagor  (^ci).  This,  however,  is 
entangled  with  difficulties.  The  question  here  is,  whether  the 
mortgfaofee  was  or  was  not  entitled  to  the  rent  in  arrear.  Be- 
fore  the  statute  of  Queen  Anne  attornment  was  necessary,  on 
the  principle  of  notice  to  the  tenant;  but,  when  it  took  place, 
it  certainly  had  relation  back  to  the  grant,  and,  like  other 
relative  acts,  they  were  to  be  taken  together.  Thus,  livery  of 
seisin,  though  made  afterwards,  relates  to  the  time  of  the  feoff- 
ment. Since  the  statute,  the  conveyance  is  complete  without 
attornment ;  hut  there  is  a  provision,  that  the  tenant  shall  not  he 
prejudiced  for  any  act  done  hij  him  as  holding  under  the  grantor, 
till  he  has  had  notice  of  the  deed.  Therefore,  the  payment  of 
rent  hefore  such  notice  is  good.  With  this  protection,  he  is  to  be 
considered,  by  force  of  the  statute,  as  having  attorned  at  the 
time  of  the  execution  of  the  grant ;  and,  here,  the  tenant  has 
suffered  no  injury.  No  rent  has  been  demanded  which  was 
paid  before  he  knew  of  the  mortgage.  He  had  the  rent  in 
question  still  in  his  hands,  and  was  bound  to  pay  it  according 
to  the  legal  title.  But  having  notice  from  the  assignees,  and 
also  from  the  mortgagee,  he  dares  to  prefer  the  former,  or 
keeps  both  parties  at  arm's  length.  In  the  case  of  executions, 
it  is  uniformly  held,  that  if  you  act  after  notice,  you  do  it  at 
your  pei-il.  He  did  not  offer  to  pay  one  of  the  parties  on  re- 
ceiving an  indemnity.  As  between  the  assignees  and  the  mort- 
gagee, let  us  see  who  is  entitled  to  the  rent.  The  assignees 
stand  exactly  in  the  place  of  the  bankrupt.  Now,  a  mortgagor 
is  not  properly  tenant  at  will  to  the  mortgagee,  for  he  is  not  to 
pay  him  rent.  He  is  only  quodam  mqdo.  Nothing  is  more  apt 
to  confound  than  a  simile.  When  the  court  or  counsel  call  a 
mortgagor  a  tenant  at  will,  it  is  barely  a  comparison.  He  is 
like  a  tenant  at  will.  The  mortgagor  receives  the  rent  by  a 
tacit  agreement  Math  the  mortgagee,  but  the  mortgagee  may 
put  an  end  to  this  agreement  when  he  pleases.  He  has  the 
legal  title  to  the  rent,  and  the  tenant  in  the  present  case  cannot 
be  damnified,  for  the  mortgagor  can  never  oblige  him  to  pay 
over  again  the  rent  which  has  been  levied  by  this  distress.  I 
therefore  think  the  distress  well  justified;  and  I  consider 
this  remedy  as  a  very  proper  additional  advantage  to  mort- 
gagees, to  prevent  collusion  between  the  tenant  and  the  mort- 
gagor. 

(a)  But  this  is  at  present  never  permitted.    See  ante,  note  to  Keech  v.  Hall. 


MOSS   V.   GALLIMORE. 

Ashurst^  Justice.  —  The  statute  of  Queen  Anne  has  rendered 
attornment  unnecessary  in  all  cases,  and  the  only  question  here 
arises  upon  the  circumstance  of  the  notice  of  the  mortgage  not 
having  been  given  till  after  the  rent  distrained  for  became  due. 
Where  the  mortgagor  is  himself  the  occupier  of  the  estate,  he 
may  be  considered  as  tenant  at  will ;  but  he  cannot  be  so  con- 
sidered if  there  is  an  under-tenant ;  for  there  can  be  no  such 
thino-  as  an  under-tenant  to  a  tenant  at  will.  The  demise  itself 
would  amount  to  a  determination  of  the  will.  There  being  in 
this  case  a  tenant  in  possession,  the  mortgagor  is,  therefore, 
only  a  receiver  of  the  rent  for  the  mortgagee,  who  may,  at  any 
time,  countermand  the  implied  authority,  by  giving  notice  not 
to  pay  the  rent  to  him  any  longer. 

Buller,  Justice.  —  There  is  in  this  case  a  plea  of  the  general 
issue,  which  is  given  by  statute  («),  but  if  the  justitication  ap- 
peared upon  the  record  in  a  special  plea,  the  distress  must  be 
held  to  be  legal.  Before  the  act  of  Queen  Anne,  in  a  special 
justification,  attornment  must  have  been  pleaded ;  but  since 
that  statute  it  is  never  averred  in  a  declaration  in  covenant, 
nor  pleaded  in  an  avowry.  In  the  case  of  Keech  v.  Hall,  re- 
ferred to  by  Mr.  Wood,  the  court  did  not  consider  the  mort- 
gagor as  tenant  at  will  to  all  purposes.  If  my  memory  do  not 
fail  me,  my  Lord  distinguished  mortgagors  from  tenants  at 
will  in  a  very  material  circumstance,  namely,  that  a  mortgagor 
would  not  be  entitled  to  emblements.  Expressions  used  in  par- 
ticular cases  are  to  be  understood  with  relation  to  the  subject- 
matter  then  before  the  court. 

The  postea  to  be  delivered  to  the  defendants. 


Moss  V.  Gallimore  is  the  leading  case  upon  a  point  Avhich  seems  so  clear  in 
principle  that,  were  it  not  for  its  verj'  general  importance,  it  would  be  per- 
haps a  matter  of  some  surprise  that  any  case  should  have  been  requisite  to 
establish  it.  The  mortgagor  having  conveyed  his  estate  to  the  mortgagee, 
the  tenants  of  the  former  become  of  course  the  tenants  of  the  latter;  the 
necessity  of  their  attornment  being  done  away  with  by  the  statute  of  Anne, 
which,  though  it  provides  that  they  shall  not  be  prejudiced  by  tlie  abolition 
of  attornment,  and  consequently  renders  valid  any  payments  they  may  have 
made  to  the  mortgagor  without  notice  of  the  mortgage  [provided  that  such 
payments  were  made  in  respect  of  rent  which  Avas  due  at  the  time  of  pay- 
ment or  became  due  before  notice  of  the  mortgage  :  Be  Nicholls  v.  Saunders, 

(a)  11  Geo.  2,  c.  19,  s.  21. 


MOSS   V.   GALLIMOKE.  889 

L.  R.  5  C.  P.  589,  39  L.  J.  C.  P.  297;  Cook  v.  Guerra,  L.  R.  7  C.  P.  132,  41  L. 
J.  C.  P.  89],  nevertheless  places  the  mortgagee  in  the  sitnation  of  the  mort- 
gagor, immediately  upon  the  execution  of  the  mortgage-deed,  subject  only 
to  that  proviso  in  favour  of  the  tenants ;  and  enables  him  by  giving  notice  to 
them  of  the  conveyance,  to  place  himself  to  every  intent  in  the  same  situa- 
tion towards  them  as  the  mortgagor  previously  occupied :  Raioson  v.  Eicke, 
7  A.  &  E.  451 ;  Burroioes  v.  Gradin,  1  Dowl.  &  L.  213. 

Such  being  the  situation  of  the  tenant  with  respect  to  the  mortgagee,  it 
would  of  course  be  unfair  that  he  should  not  be  propoi-tionably  exonerated 
from  his  liabilities  to  the  mortgagor;  therefore,  where  a  lessor,  after  the 
execution  of  the  lease,  moi-tgaged  the  premises,  it  was  held  that  he  could  not 
afterwards  maintain  ejectment  for  a  forfeiture :  Doe  dem.  Marriott  v.  Ed- 
icards,  5  B.  &  Ad.  1065.  [As  to  what  is  notice  of  the  mortgage,  see  Cook 
V.  Guerra,  tibi.  sup.'} 

In  Trent  v.  Hunt,  9  Exch.  14,  it  is  said  to  have  been  decided  by  the  Court 
of  Exchequer,  that  if  a  lessor  having  mortgaged  his  reversion  is  permitted 
by  the  mortgagee  to  continue  in  the  receipt  of  the  rent  incident  to  that  rever- 
sion, he,  during  such  permission,  is,  presumptions  juris  authorised,  if  it  should 
become  necessary,  to  realise  the  rent  by  distress,  and  to  distrain  for  it  in  the 
mortgagee's  name  as  his  bailift'.  [In  Snell  v.  Finch,  13  C.  B.  N.  S.  651,  Trent 
V.  Hunt  was  acted  upon,  the  court  suggesting  that  the  implied  authority  may 
be  limited  to  a  distress  on  a  lawful  occasion.  See  also  the  judgments  of 
Williams  and  Willes,  JJ.,  in  The  Dean,  &c.,  of  Christchurch  v.  The  Duke  of 
Burkinyham,  17  C.  B.  N.  S.  391,  33  L.  J.  C.  P.  322.] 

Such  being  the  situation  of  a  tenant  who  comes  in  under  the  mortgagor 
before  the  mortgage,  let  us  now  examine  a  subject  which  seems  to  involve 
more  difficulty,  namely,  that  of  a  tenant  who  has  entered  under  the  mortgagor 
subsequenthj  to  the  mortgage. 

[And  first  it  must  be  observed,  that  as  regards  mortgages  made  since  the 
1st  January,  1882,  the  Conveyancing  Act,  1881,  44  &  45  Vict.  c.  41,  has  intro- 
duced a  material  difference,  for  by  that  Act,  unless  otherwise  provided  by 
such  mortgage,  a  statutory  power  of  leasing  is  given  to  a  mortgagor  or  mort- 
gagee while  respectively  in  possession.  In  this  note  there  will  be  considered 
the  situation  of  a  mortgagor's  tenant  under  a  tenancy  posterior  to  the  mort- 
gage, 

1st.  Where  the  lease  is  not  made  under  the  statutory  power. 

2nd.   Where  it  is  so  made. 

And,  first,  at  common  law,]  it  was  once  alleged  that  though  a  tenant  who 
had  entered  previous  to  the  mortgage  became  the  tenant  of  the  mortgagee 
after  the  mortgage,  and  might,  if  any  proceedings  were  afterwards  instituted 
against  him  by  the  mortgagor,  show  that,  although  that  person  was  once  his 
landlord,  he  had  now  conveyed  away  his  estate  in  the  premises;  (according 
to  the  ordinary  rule  of  law,  that  a  tenant,  though  he  cannot  dispute  the  title 
of  the  landlord  under  whom  he  entered,  may  confess  and  avoid  it  by  showing 
that  it  has  now  determined  :  see  Doe  dem.  Afarriott  v.  Edwards,  above  cited;) 
"still  that  a  tenant  who  had  entered  since  the  mortgage  was  differently  situated, 
for  that  he  was  estopped  from  disputing  the  title  of  the  mortgagor,  and 
could  not  confess  and  avoid  it,  inasmuch  as  it  had  never  really  existed  during 
the  period  of  his  possession ;  and  this  idea  derived  a  good  deal  of  counte- 
nance from  the  decision  of  the  Court  of  Common  Pleas,  Alchorne  v.  Gomme, 
2  Bing.  54. 

However,  the  subject  was  afterwards  fully  discussed  in  Pope  v.  Biggs,  9  B. 


890  MOSS    V.    GALLIMORE. 

&  C.  245,  [and  in  that  case,  followed  in  Waddilove  v.  Barnett,  4  Dowl.  348,  it 
was  held  that  a]  "  mortyagee,  by  fjivinrj  notice  of  the  mortrjaye  to  the  tenant, 
may  thereby  make  him  his  tenant,  and  entitle  himself  to  receive  the  rents."  "  The 
mortgagor,"  said  Parke,  J.,  "  may  be  considered  as  acting  in  the  nature  of  a 
bailiff  or  agent  for  the  morUjayee.  His  receipt  of  rent  Avill,  therefore,  be  good 
until  the  mortgagee  interferes,  and  he  may  recover  on  the  contracts  he  has 
himself  entered  into  in  his  own  name  with  the  tenants.  But  where  the  mort- 
gagee determines  the  implied  authority  bj'  a  notice  to  the  tenants  to  pay  their 
rents  to  him,  the  mortgagor  can  no  longer  receive  or  recover  any  unpaid  I'ent, 
whether  already  due  or  no."  \_Accord,  Vallance  v.  Savaye,  7  Bing.  595  (a 
case  of  trustee  and  cestui  que  trust)  •,'\  Meyyinson  v.  Harper,  i  Tyrwh.  100; 
Burrowps  v.  Gradin,  1  Dowl.  &  L.  213,  Wightman,  J. 

The  doctrine  tlius  promulgated  in  Pope  v.  Biyys  was,  however,  shaken  by 
Partinyton  v.  Woodcork,  6  A.  &  E.  690,  and  Royers  v.  Humphreys,  A.  &  E.  313. 
And  at  length,  in  Evans  v.  Elliott,  9  A.  &  E.  342,  it  was  expressly  decided  by 
the  Court  of  Queen's  Bench  [on  a  question  whether  the  mortgagee  had  a 
right  to  distrain,]  that  the  mortyayee  cannot  by  the  mere  fact  of  yiviny  the  mort- 
gayofs  tenant  a  notice,  cause  him  to  hold  of  himself  the  mortyayee,  and  that 
even  a  subsequent  attornment  by  the  tenant  to  the  mortyayee  will  not  have  the 
effect  of  settiny  up  his  title  as  landlord  by  relation. 

The  I'esult  of  this  decision  and  of  that  of  the  Court  of  C.  P.  in  Broicn  v. 
Storey,  1  Scott,  N.  C.  91;  1  M.  &  G.  117,  seems  to  be  that  [at  common  law] 
in  order  to  ci'eate  a  tenancy  between  the  mortgagee  and  the  tenant  let  into 
possession  by  the  mortgagor,  there  must  be  some  evidence  whence  it  may  be 
inferred  that  such  relation  has  been  raised  by  mutual  agreement,  and  that  in 
such  case  the  terms  of  the  tenancy  are  to  be  ascertained  (as  in  an  ordinary 
case)  from  the  same  evidence  which  proves  its  existence,  but  that  it  does  not 
lie  in  the  power  of  the  mortgagee  by  a  mere  notice  to  cause  the  tenant  in 
possession  to  hold  vmder  him  on  the  same  terms  on  which  he  held  under  the 
mortgagor —  or  indeed  upon  any  terms  at  all  without  his  own  consent.  And 
that  where  the  tenant  does  consent  to  hold  under  the  mortgagee,  a  new  ten- 
ancy is  created,  not  a  continuation  of  the  old  one  between  him  and  the  mort- 
gagor. [See  the  judgment  in  Waddilove  v.  Barnett,  2  Bing.  N.  C.  538.]  In 
Brown  v.  Storey,  indeed,  the  Court  of  Common  Pleas  expressed  an  opinion 
that,  if  the  mortgagor's  tenant,  after  receiving  notice  from  the  mortgagee  to 
pay  rent  to  him,  continued  in  possession,  it  might  fairly  be  inferred  that  he 
assented  to  continue  as  tenant  to  the  mortgagee  upon  the  old  terms. 

In  Burrowes  v.  Gradin,  1  DoavI.  &  L.  213  (which  may  be  considered  a  mid- 
dle case),  AVightman,  J.,  held  that  an  agreement  [made  after  the  mortgage] 
between  the  mortgagor  and  a  tenant  from  year  to  year,  whose  tenancy  com- 
menced before  the  mortgage,  for  paj'ment  of  an  additional  annual  sum  as 
rent,  in  consideration  of  improvements  made  by  the  mortgagor,  had  not  the 
eflect  of  so  changing  the  situation  of  the  parties,  that  the  tenant  could 
be  considered  as  no  longer  holding  of  the  mortgagee ;  and  further,  that  the 
mortgagee  might  adopt  the  dealing  of  the  mortgagor  as  his  agent,  and  (after 
notice  of  the  mortgage)  recover  not  merely  the  amount  of  rent  originally 
payable,  but  the  additional  sum  also,  which,  in  consequence  of  the  improve- 
ment of  the  land,  the  tenant  agreed  to  pay;  a  remarkable  decision,  so  far  as 
relates  to  the  additional  svim  agreed  to  be  paid,  because  it  appears  from 
Donellan  v.  Read,  3  B.  &  Ad.  899,  and  Lambert  v.  Norns,  2  M.  &  W.  334,  that 
that  sum  was  not  rent  properly  so  called,  but  a  sum  in  gross,  for  which  an 
assignee  of  the  reversion  could  not  sue,  nor  could  an  assignee  of  the  term  be 


MOSS    Y.    GALLIMORE.  891 

sued.  The  reasoning  of  AViglitman,  J.,  though  expressly  limited  to  the 
peculiar  circumstances  of  the  case,  and  especially  founded  on  tliat  of  the 
tenancy  having  existed  at  the  time  of  the  mortgage,  tends  in  some  degree 
to  confirm  tlie  conclusions  drawn  from  Fupe  v.  Bi(j(js. 

It  should  seem  tliat  the  cases  on  tliis  subject  miglit  be  reconciled  to  ordi- 
nary principles,  without  straining  after  any  peculiar  rule  applicable  to  the  case 
of  mortgagor  and  mortgagee,  by  observing  that  a  tenant  of  the  mortgagor, 
whose  tenancy  has  commenced  since  the  mortgage,  may  [at  common  law]  in 
case  of  an  eviction  by  tlie  mortgagee,  either  actual  or  constructive,  (for 
instance,  an  attornment  to  him  under  threat  of  eviction,  see  Doe  d.  Hiyrjin- 
botham  V.  Barton,  11  A.  &  E.  314;  ^fa)Jor  of  Poole  v.  Whitt,  15  M.  &  W.  571; 
[and  the  judgments  in  Delaney  v.  Fox,  2  C.  B.  N.  S.  7G8,  and  Carpenter  v. 
Parker,  3  C.  B.  N.  S.  237,  27  L.  J.  C.  P.  78],)  dispute  the  mortgagor's  title  to 
either  the  land  or  the  rent,  (which  is  no  more  than  any  tenant  may  do  upon 
an  eviction  by  title  paramount;)  and  further,  that  he  may,  altliougli  there 
have  been  no  eviction,  defend  an  action  for  rent  l)y  proof  of  a  payment  under 
constraint,  in  discharge  of  the  mortgagee's  claim,  Johnson  v.  Jones,  9  A.  &  E. 
809,  (which  right  is  analogous  to  that  of  an  ordinarj'  tenant  in  respect  of 
payments  on  account  of  rent-charges,  and  other  claims  issuing  out  of  the 
land,  of  which  examples  are  cited  in  the  note  to  Lampleiyh  \.  Braithicaite, 
ante ;)  so  that  [such]  a  tenant  who  has  come  in  under  the  mortgagor  after 
the  mortgage,  and  has  neither  paid  the  rent  to  the  mortgagee,  nor  been 
evicted  by  him  either  actually  or  constructively  before  tlie  tlay  of  payment, 
cannot  defend  an  action  by  the  mortgagor  for  that  rent :  Wheeler  v.  Brans- 
combe,  5  Q.  B.  373. 

As  the  mortgagor  ceases  to  be  entitled  to  the  rents  upon  the  mortgagee's 
giving  the  tenant  notice,  [and  the  tenant's  paying  them  to  him,]  it  follows 
that  the  mortgagor  cannot  afterwards  maintain  anj'  action  for  use  and  occu- 
pation against  him,  either  for  rent  which  accrued  due  after  the  notice,  or  for 
rent  which  accrued  due  before  the  notice,  but  was  unpaid  at  the  time  when 
the  notice  was  given.  In  the  former  case  the  defence  amounts  to  a  denial 
of  the  contract  alleged,  which  avers  the  defendant  to  have  used  and  occupied 
the  land  Ijy  tlic  permission  of  the  plaintifl',  the  mortgagor.  But  in  the  latter 
case,  viz.,  where  tlie  rent  became  due  before  notice,  but  was  unpaid  at  the 
time  of  notice,  the  tenant  confesses  that  the  right  of  action  once  existed,  but 
avoids  it  l)y  matter  ex  2)ost  facto,  viz.,  by  the  subsequent  notice  from  the 
mortgagee,  Waddilove  v.  Barnett,  4  Dowl.  P.  C.  347;  2  Bing.  N.  C.  538. 

[It  appears  to  be  now^  settled  that  at  common  law  the  mere  notice  without 
payment  or  eviction  is  not  a  defence  to  an  action  by  the  mortgagor  against 
the  tenant,  either  for  rent  due  before  (  Wilton  v.  Dunn,  17  Q.  B.  294 ;  Hickman 
V.  Machin,  4  II.  &  N.  71G),  or  after  the  notice  {Hickman  v.  Maehin). 

Secondly,  there  remains  to  be  considered  the  situation,  relatively  to  the 
mortgagee,  of  the  mortgagor's  tenant  whore  the  lease  has  been  made  ))y 
the  mortgagor  under  the  statutory  power  given  by  s.  18  of  the  Conveyancing 
Act,  1881.  It  is  by  that  section  enacted,  with  reference  to  mortgages  made 
after  1  Jan.  1882,  that  "  a  mortgagor  of  land  wliile  in  possession  shall,  as 
against  every  incumbrancer,  have,  by  virtue  of  this  Act,  power  to  make  from 
time  to  time  any  such  lease  of  the  mortgaged  land,  or  any  part  thereof,  as  is 
in  tliat  section  described  and  authorised."  The  remainder  of  the  section  will 
be  found  set  out  in  the  note  to  Kecch  v.  Hall,  ante,  p.  549.  Further,  s.  10  of 
the  same  Act  is  as  follows:  —  "Rent  reserved  by  a  lease  and  the  benefit 
of  every  covenant   or  provision  therein  contained  having  reference  to  the 


892  MOSS   V.    GALLIMORE. 

subject-matter  thereof,  and  on  the  lessee's  part  to  be  observed  or  performed, 
and  every  condition  of  re-entry  and  other  condition  therein  contained,  shall 
be  annexed  and  incident  to,  and  shall  go  with  the  reversionary  estate  in  the 
land,  or  in  any  part  tliereof ,  immediately  expectant  on  the  term  granted  by 
the  lease,  notwithstanding  severance  of  that  reversionary  estate,  and  sliall 
be  capable  of  being  recovered,  received,  enforced,  and  taken  advantage  of  l)y 
the  person  from  time  to  time  entitled,  subject  to  the  term,  to  tlie  income 
of  the  whole  or  any  part,  as  the  case  may  require,  of  the  land  leased."  Sect. 
11  provides  that  the  obligation  of  the  lessor's  covenants  sliall  lilcewise  run 
witli  the  reversion  so  far  as  the  lessor  has  power  to  bind  the  person  entitled 
to  the  reversion. 

These  sections  apply  only  to  leases  made  after  the  commencement  of  the 
Act  in  the  case  of  leases  of  the  kind  now  under  consideration.  Tlie  object 
aimed  at  by  the  above  sections  would  seem  to  be  to  provide  that  wliile  on  the 
one  hand  a  lease  by  a  mortgagor  in  possession  is  to  be  valid  against  and 
binding  on  the  mortgagee,  on  the  other  hand,  the  mortgagee,  at  anv  rate  on 
giving  notice  or  going  into  possession,  is  at  once  to  have  under  sucli  lease 
every  right  Avhicli  he  would  have  had  if  he  himself  had  been  tlie  lessor.  The 
wording  of  the  sections,  however,  is  somewliat  obscure,  and  it  would  be 
premature  to  express  an  opinion  whether  tlieir  combined  efl'ect  is  as  above 
suggested. 

It  should  be  observed  that  the  power  given  by  s.  18  may  be  excluded, 
modified,  or  enlarged  by  the  express  terms  of  the  instrument  itself. 

The  Judicature  Act,  1873,  provides,  s.  25,  sub-s.  5,  that  "a  mortgagor 
entitled  for  the  time  being  to  the  possession  or  receipt  of  tlie  rents  and 
profits  of  any  land  as  to  Avhicli  no  notice  of  his  intention  to  take  possession 
or  to  enter  into  the  receipt  of  the  rents  and  profits  thereof  shall  be  given  by 
the  mortgagee,  may  sue  for  such  possession  or  for  the  I'ecovery  of  sucli  rents 
or  profits,  or  to  prevent  or  recover  damages  in  respect  of  any  trespass  or 
other  wrong  relative  thereto  in  his  own  name  only,  unless  the  cause  of  action 
arises  upon  a  lease  or  other  contract  made  by  him  jointly  witli  any  otlier 
person."] 

I|  will  conclude  this  note  by  taking  notice  of  a  case  Avhich  sometimes 
occurs;  viz.,  that  of  a  lease  purporting  to  be  by  mortgagor  and  mortgagee 
jointly  :  such  an  instrument  operates  as  a  lease  by  the  mortgagee,  with  a  con- 
firmation by  the  mortgagor,  until  the  estate  of  the  former  has  been  deter- 
mined by  paying  off"  the  mortgage-money,  and  then  it  becomes  the  lease  of 
the  mortgagor,  and  the  confirmation  of  the  mortgagee,  and  it  follow[ed] 
that,  if  [before  the  Common  Law  Procedure  Act,  1852]  ejectment  was 
brought  against  the  tenant  during  the  mortgagee's  estate,  the  demise  must 
have  been  laid  in  the  name  of  the  mortgagee;  if  afterwards,  in  that  of  the 
mortgagor ;  but  a  joint  demise  laid  in  the  declaration  would  not  have  been 
improper :  Doe  dem.  Barney  v.  Adams,  2  Tyrwh.  289.  See  Doe  dem.  Barker 
V.  Goldsmith,  Ibid.  710. 

[A  right  of  entry  reserved  to  the  mortgagor  only  in  a  lease  by  mortgagor 
and  mortgagee  was  (before  the  Conveyancing  Act,  1881)  held  not  to  be  avail- 
able to  the  plaintifls  in  ejectment  by  the  mortgagor  and  mortgagee  :  Saunders 
V.  Merry  weather,  3  H.  &  C.  902,  35  L.  J.  Exch.  115.  The  mortgagee  could  not 
re-enter,  because  no  right  of  re-entry  was  reserved  to  him ;  the  mortgagor 
could  not,  because  he  had  no  legal  interest  in  the  reversion,  and  tlie  facts  of 
the  case  excluded  an  estoppel.] 

When  a  mortgagor  and  mortgagee  join  in  a  lease,  and  the  covenants  to  pay 


MOSS   V.    GALLIMORE.  893 

rent  and  repair  are  ■with  the  mortgagor  and  his  assigns  only,  the  [assignee  of 
the]  mortgagee  cannot  [unless  by  virtue  of  the  Conveyancing  Act,  1881]  sue 
on  those  covenants,  because  collateral  to  his  interest  in  the  land :  ]Vebh  v. 
Russell,  3  T.  R.  393 ;  though  the  mortgagor  might  sue  on  them  as  covenants 
in  gross :  Stokes  v.  Russell,  3  T.  R.  678,  1  H.  Bl.  5G2.  Where  the  mortgagor 
and  mortgagee  join  in  a  lease,  containing  an  express  covenant  by  the  mort- 
gagor for  quiet  enjoyment,  no  covenant  from  both  can  be  implied.  Smith  v. 
PUkington,  1  Tj'rwh.  313.  In  Harold  v.  Whitaker,  11  Q.  B.  147,  163,  in  a 
lease  by  the  mortgagor  and  mortgagee  which  recited  the  mortgage,  the  red- 
dendum Avas  to  the  mortgagee,  his  executors,  &c.,  during  the  continuance  of 
the  mortgage,  and  after  payment  and  satisfaction  thereof,  to  the  mortgagor 
or  his  executors,  &c.,  and  the  lessee  covenanted  to  and  with  the  mortgagee, 
and  also  to  and  with  the  mortgagor,  to  pay  the  rent  "  on  the  several  days  and 
times,  and  in  manner  as  the  same  was  reserved  and  made  payable."  The 
covenant  was  holden  to  be  several. 


Position  of  a  tenant  under  a  lease  made  by  a  mortgagor  in  refer- 
ence to  the  payment  of  rent :  — 

(l)  Where  the  lease  is  prior  to  the  mortgage.  —  The  mortgagee, 
merely  upon  giving  notice  to  the  tenant  in  possession,  is  entitled 
to  receive  all  rent  accruing  and  becoming  due  subsequently 
to  the  execution  of  the  mortgage,  including  whatever  is  in 
arrear  at  the  time  of  giving  notice  as  well  as  that  which  ac- 
crues and  becomes  due  afterwards.  Russell  v.  Allen,  2  Allen 
42 ;  Mirick  v.  Hoppin,  118  Mass.  582 ;  King  v.  Housatonic  R. 
R.  Co.,  45  Conn.  226,  4  Kent's  Com.  (6th  ed.)  165,  Washburn 
Real  Property  531  (although  in  Pennsylvania,  Myers  v.  White, 
1  Rawle  353  at  355,  it  was  said  the  mortgagee  could  not  compel 
the  tenant  to  j^ay  the  rent  to  him,  whether  the  lease  was  exe- 
cuted before  or  after  the  mortgage).  If,  however,  the  possession 
is  reserved  to  the  mortgagor  until  breach,  the  mortgagee  is  not 
entitled  to  receive  the  rent  until  default,  and  after  giving 
notice  of  his  claim  and  requiring  payment  to  himself ;  Taylor's 
Landlord  and  Tenant  §  121  (8th  ed.).  The  mortgagee  is  not 
entitled  to  the  rent  which  became  due  before  the  execution 
of  the  mortgage ;  Burden  v.  Tha3'er,  3  Mete.  76 ;  King  v. 
Housatonic  R.  R.  Co.,  uhi  sujyra.  Payment  of  rent  to  the  mort- 
gagor before  notice  from  the  mortgagee  is  a  good  defence  to 
an  action  lor  the  rent  by  the  mortgagee ;  Russell  v.  Allen,  ubi 
supra  ;  Fitchburg  Corp.  v.  Melven,  15  Mass.  268.  If,  however, 
the  mortgagee,  before  or  at  the  time  rent  becomes  due,  notify 
the  tenant  to  pay  the  rent  to  him,  the  tenant  cannot  defend 
by  proving  previous  payment  to  the  mortgagor ;  De  Xicholls  v. 


894  MOSS   V.    GALLIMORE. 

Saunders,  L.  R.  5  C.  P.  589 ;  Cook  v.  Guerra,  L.  R.  7  C.  P.  132. 
Attornment  by  the  tenant  to  the  mortgagee  is  not  necessary  to 
enable  the  latter  to  maintain  an  action  for  rent;  Burden  v. 
Thayer,  idn  sujyra. 

(II)  Where  the  lease  is  subsequent  to  the  mortgage  and  made 
by  a  mortgagor  -while  remaining  in  possession  of  the  mortgaged 
estate.  —  At  common  law  the  mortgagee  has  a  right  to  the  im- 
mediate possession  of  the  mortgaged  estate  ;  Colman  v.  Packard, 
16  Mass.  39 ;  Rockwell  v.  Bradley,  2  Conn.  1 ;  Blaney  v.  Bearee,  2 
Greenl.  132.  The  mortgagee  cannot  compel  the  tenant,  there 
being  no  privity  of  contract  or  estate  between  them,  to  pay  the 
rent  to  himself ;  jNIcKircher  v.  Hawle}',  10  Johns.  289  ;  Rogers  v. 
Humphreys,  4  Ad.  &  El.  299  at  313  ;  thus,  the  mortgagee  cannot 
by  mere  notice  compel  the  tenant  to  pay  the  rent  to  himself;  Bart- 
lett  V.  Hitchcock,  10  Bradw.  (111.)  871 ;  Evans  v.  Elliott,  9  Ad.  & 
El.  342;  Drakford  v.  Turk,  75  Ala.  339,  though  formerly  held 
otherwise  in  Alabama;  Hutchinson  v.  Bearing,  20  Ala.  798  ;  and 
held  otherwise  in  ^Maryland  to-day ;  Clark  v.  Abbott,  1  Md.  Ch.  474. 
On  the  other  hand,  the  mortgagee  may  consider  the  tenant  as  a 
trespasser  or  a  disseisor  and  may  maintain  ejectment  or  a  writ  of 
entry  against  him  ;  Fitchburg  Corp.  v.  ISIelven,  ubi  supra;  Mass. 
Ins.  Co.  V.  Wilson,  10  ]\Ietc.  126.  But  where  the  estate  remains 
in  the  mortgagor  until  after  foreclosure  and  sale,  the  mortgagee 
cannot  treat  the  tenant  as  a  trespasser  until  that  time ;  Simers 
V.  Saltus,  3  Den.  214  at  219,  and  though  the  tenant  attorn  to 
the  mortgagee  before  foreclosure  and  sale,  it  is  no  defence  to 
an  action  by  the  mortgagor  for  the  rent ;  Hogsett  v.  Ellis,  17 
Mich.  351.  The  mortgagee  may  eject  the  tenant  without 
notice  to  quit ;  Doe  v.  Mace,  7  Blackf .  2 ;  Rockwell  v.  Bradley, 
ubi  supra;  Steadman  v.  Gassett,  18  Vt.  346  ;  Bartlett  v.  Hitch- 
cock, ubi  supra  ;  Comer  v.  Sheehan,  74  Ala.  452.  A  mortgagor, 
not  having  reserved  possession  to  himself  until  breach,  cannot 
make  a  lease  which  will  be  good  against  the  mortgagee  ;  Keith 
V.  Swan,  11  Mass.  216 ;  Howell  v.  Schenck,  4  Zab.  89  at  91. 
Until  there  has  been  an  actual  entry  by  the  mortgagee,  or 
some  act  equivalent  thereto  has  occurred,  the  mortgagee  can 
maintain  no  action  against  the  tenant  for  the  recovery  of  rent, 
except  upon  an  express  promise  to  pay  it ;  Russell  v.  Allen,  2 
Allen  42  at  44 ;  Long  v.  Wade,  70  Me.  358 ;  Kimball  v.  Lock- 
wood,  6  R.  I.  138.  When  the  mortgagee  has  entered  and  noti- 
fied the  tenant  to  pay  the  rent  to  him,  the  tenant  cannot 
defend  an  action  for  the  rent  by  showing  there  is  a  prior  mort- 


MOSS   V.    GALLIMOEE.  895 

gage  under  which  no  entry  has  been  made ;  Cavis  v.  McClary, 
5  N.  H.  529.  Though  the  entry  of  the  mortgagee  be  ineffec- 
tual for  the  purpose  of  foreclosure,  yet  if  notice  be  given  to 
the  tenant,  he  is  entitled  to  subsequently  accruing  rents ;  Cook 
V.  Johnson,  121  Mass.  326.  Where  the  mortgagor  owns  the 
estate  until  the  mortgagee  enters  for  breach  of  condition,  the 
mortgagee  cannot,  before  entry  for  condition  broken,  recover 
rent  due  from  the  tenant  of  the  mortgagor ;  White  v.  Wear, 
4  Mo.  Ap.  341.  Though  the  mortgagee  cannot  compel  the 
lessee  to  become  his  tenant,  yet  on  entry  or  demand  the  latter 
may  attorn  and  pay  the  after-accruing  rent  to  him ;  Baldwin  v. 
Walker,  21  Conn.  168 ;  Welch  v.  Adams,  1  Mete.  494 ;  Cook 
V.  Johnson,  ubi  supra;  Kimball  v.  Lockwood,  ubi  supra;  Cavis 
V.  McClary,  ubi  supra;  but  the  tenant  is  not  bound  to  attorn, 
and  may  consider  himself  as  evicted  ;  Simers  v.  Saltus,  3  Den. 
214.  If,  however,  the  tenant  attorns,  there  Avill  be  a  new  ten- 
ancy and  no  liability  upon  the  old  lease ;  thus  in  Doe  v.  Buck- 
nell,  8  C.  tS:  P.  566,  it  was  held  the  lessee  became  tenant  from 
year  to  year;  and  in  Illinois,  Gartside  v.  Outley,  58  111.  210,  where 
there  was  no  express  contract  between  the  mortgagee  and  the 
tenant,  it  was  said  the  latter  would  become  a  tenant  from  year 
to  year.  Although  there  be  no  liability  upon  the  old  lease, 
yet  if  the  tenant  pay  the  mortgagee  tlie  rent  due  but  unpaid 
before  notice,  the  tenant  will  have  a  good  defence  against  the 
mortgagor ;  Waddilove  v.  Barnett,  4  Dowl.  P.  C.  347;  2  Bing. 
N.  C.  538. 

"When  can  the  tenant  resist  an  action  for  the  rent  by  the  mort- 
gagor ? —  (a)  When  the  tenant  has  been  evicted  by  the  mort- 
gagee, or  has  attorned  to  him  under  threat  of  eviction  ;  Simers 
V.  Saltus,  3  Den.  214  at  216 ;  Jones  v.  Clark,  20  Johns.  51  at  62 ; 
Fitchburg  Corp.  v.  Melven,  15  Mass.  268  ;  Hickman  v.  Machin, 
4  H.  &  N.  716  at  720.  Eviction,  however,  is  a  good  defence  only 
for  the  rent  that  falls  due  subsequently,  but  not  for  that  due 
when  eviction  took  place ;  Carpenter  v.  Parker,  3  C.  B.  (N.  S.) 
206.  (J)  When,  after  notice  from  the  mortgagee,  the  tenant 
has  paid  him  not  only  the  rent  falling  due  subsequently  to  the 
'notice,  but  also  the  rent  due  but  unpaid  before  the  notice  ; 
Waddilove  v.  Barnett,  4  Dowling  P.  C.  347;  2  Bing.  N.  C. 
538.  But  mere  notice  from  the  mortgagee,  without  eviction  or 
payment,  is  no  defence  to  an  action  by  the  mortgagor  against 
the  tenant,  either  for  rent  due  before  or  after  notice ;  Wilton 
V.  Dunn,  17  Q.  B.  294 ;  Hickman  v.  Macliin,  4  H.  &  N.  716. 


WHITCOMB   V.   WHITING. 


EASTER.  — 21  GEORGES. 
[reported  dougl.  G52.] 

ITie  acknowledgment  of  one  out  of  several  drawers  of  a  joint  and 
several  promissory  note  takes  it  out  of  the  Statute  of  Limita- 
tions as  against  the  others^  and  may  he  given  in  evidence  in  a 
separate  action  against  any  of  the  others.  (Secus  since  the 
statutes  mentioned  in  the  notes.^ 

Declaration,  in  the  common  form,  on  a  promissory  note 
executed  by  the  defendant.  Fleas :  the  general  issue,  and  non 
assumpsit  infra  sex  annos.  Replication:  assumpsit  infra  sex 
annos.  The  cause  was  tried  before  Hotham.,  Baron,  at  the  last 
assizes  for  Hampshire.  The  plaintiff  produced  a  joint  and 
several  note  executed  by  the  defendant  and  three  others ;  and, 
having  proved  payment,  by  one  of  the  others,  of  interest  on  the 
note,  and  part  of  the  principle,  within  six  years,  and  the  Judge 
thinkinof  that  was  sufficient  to  take  the  case  out  of  the  statute, 
as  against  the  defendant,  a  verdict  was  found  for  the  plaintiff. 

On  Friday,  the  4th  of  May,  a  rule  was  granted  to  show  cause 
why  there  should  not  be  a  new  trial  on  the  motion  of  Lawrence^ 
who  cited  Bland  v.  Haslerig  (a)  ;  and  this  day  in  support  of 
the  application,  he  contended,  that  the  plaintiff',  by  suing  the 
defendant  separately,  had  treated  this  note  exactly  as  if  it  had 
been  signed  only  by  the  defendant ;  and,  therefore,  whatever 
might  have  been  the  case  in  a  joint  action,  in  this  case  the  acts 
of  the  other  parties  were  clearly  not  evidence  against  him. 
The  acknowledgment  of  a  party  himself  does  not  amount  to  a 
new  promise,  but  is  only  evidence  of  a  promise.  This  was 
determined  in  the  case  of  Heylin  v.   Hastings  (<^),  reported  in 

(a)  C.  B.  H.  1  &  2  W.  &  M. ;  2  Ventr.  150.  (5)  B.  R.  H.  10  Wil.  3. 

896 


WHITCOMB   V.    WHITING,  897 

Salkelcl  (a),  and  12  Modern  (/>) ;  and  in  Hemmings  v.  Robin- 
son (c),  it  was  decided,  that  the  confession  of  nobody  but  a 
defendant  himself  is  evidence  against  him.  That  hist  case  "svas 
an  action  by  an  indorsee  of  a  note,  against  the  drawer,  and  the 
pLaintiff  proved  the  acknowledgment  of  a  mesne  indorser 
that  the  indorsement  on  the  back  of  the  note  was  in  his  hand- 
writing ;  but  the  court  was  of  opinion,  that  this  was  not  evi- 
dence against  the  drawer,  but  that  the  indorsement  must  be 
proved.  It  would  certainly  open  a  door  to  fraud  and  collusion, 
if  this  sort  of  evidence  were,  in  any  case,  to  be  admitted.  A 
plaintiff  might  get  a  jomt  di-awer  to  make  an  acknowledgment, 
or  to  pay  part,  in  order  to  recover  the  whole,  although  it  had 
been  already  paid. 

Lord  Mansfield.  —  The  question  here,  is  only  whether  the 
action  is  barred  by  the  Statute  of  Limitations.  When  cases  of 
fraud  appear,  they  Avill  be  determined  on  their  own  circum- 
stances. Payment  hy  one  is  paymemt  for  all,  the  one  acting, 
virtually,  as  agent  for  the  rest ;  and,  in  the  same  manner,  an 
admission  hy  one  is  an  admission  hy  all;  and  the  law  raises  the 
promise  to  pay,  when  the  debt  is  admitted  to  be  due. 

Willes,  Justice.  —  The  defendant  has  had  the  advantage  of 
the  partial  payment,  and,  therefore,  must  be  bound  by  it. 

Ashurst  and  Buller,  Justices,  of  the  same  opinion. 

The  rule  discharged  (d). 


[The  decision  in  the  principal  case  as  to  the  efl'ect  of  acknowledgment  or 
payment  hy  a  joint  contractor  as  regards  tlie  Statute  of  Limitations  has  been 
reversed  by  9  Geo.  4,  c.  14,  sects.  1  and  2  (commonly  called  Lord  Tenterden's 
Act),  supplemented  by  sect.  14  of  "  The  Mercantile  Law  Amendment  Act, 

(a)  1  Salk.  29.  defendant,  who  was  found  to  have 

(6)  223.  promised  within  the  six  years.     That 

(c)  C.  B.  M.  6  Geo.  2 ;  Barnes  4to  case  may  be  explained  on  the  manner 
ed.  436.  of  the  finding;  for  as  the  plea  was 

(d)  The  case  of  Haslerig  v.  Bland,  joint,  and  the  replication  must  have 
cited  [in  the  preceding  page],  was  a  alleged  a  joint  undertaking,  the  ver- 
joint  action  against  four;  the  plea,  diet  did  not  find  what  the  plaintiff 
tTie  Statute  of  Limitations;  and  a  had  bound  himself  to  prove.  But 
verdict,  that  one  of  the  defendants  according  to  the  principle  in  the  case 
did  assume  witliin  six  years,  and  that  of  WhUcomb  v.  Whiting,  the  jury 
the  others  did  not ;  and  it  was  held  ought  to  have  considered  the  prom- 
by  Pollexfen,  C.  J.,  Powel,  and  Ro/cebtj  ise  of  one  as  the  promise  of  all,  and 
(against  Vcntris),  that  the  plaintiff"  therefore  should  have  found  a  gen- 
could  not  have  judgment  against  the  eral  verdict  against  all. 


898  "WHITCOMB   V.    WHITING. 

1856"  (19  &  20  Vict.  c.  98),  as  to  which  section  see  Cockrill  v.  Spm'kes,  1  H. 
&  C.  699.  These  enactments  have  thus  rendered  comparatively  useless,  and 
therefore  caused  the  oniission  here  of  a  considerable  portion  of  the  notes 
formerly  appended  to  this  case.  The  remainder  of  the  notes  has  not  lost  its 
utility,  as  it  relates  chiefly  to  the  question,  Avhat  proof  of  payment  suflices, 
as  against  the  person  achiaUy  payiiir/,  to  save  the  Statute  of  Limitations,  hav- 
ing regard  to  the  provisions  of  sect.  1  of  Lord  Tenterden's  Act.  That  sec- 
tion enacts  that,  "  in  actions  of  debt,  or  upon  the  case  grounded  upon  any 
simple  contract,  no  acknowledgment  or  promise  by  words  only  shall  be 
deemed  sufficient  evidence  of  a  new  or  continuing  contract,  whereby  to  take 
any  case  out  of  the  operation  of  the  said  enactments  "  {suhintdl.  Statutes  of 
Limitation),  "or  either  of  them,  or  to  deprive  any  party  of  the  benefit 
thereof,  unless  such  acknowledgment  or  promise  shall  be  made  or  contained 
by  or  in  some  writing  to  be  signed  by  the  party  chargeable  thereby,  pro- 
vided that  nothing  herein  contained  shall  alter  or  take  away  or  lessen  the 
effect  of  any  payment  vf  any  principal  or  interest  made  by  any  person  what- 
soever."] 

Where  one  of  two  joint  drawers  of  a  l)iU  of  exchange  became  bankrupt, 
and  the  holder  of  the  bill  proved,  not  upon  the  bill,  but  for  goods  sold, 
exhibiting  the  bill  as  a  security,  it  was  held  that  receipt  of  dividends  on  that 
proof  would  not  take  the  case  out  of  the  Statute  of  Limitations,  as  against 
the  other  drawer:  Brandram  v.  Wharton,  1  B.  &  A.  4G3.  In  that  case  the 
dividend  was  paid  upon  the  debt  proved,  and  its  payment  could  not,  without 
straining  the  facts,  be  treated  as  a  payment  on  account  of  the  bill ;  but  in 
general,  ivhere  there  are  several  securities  for  a  debt,  a  general  payment  on 
account  revives  them  all;  thus  where  a  promissory  note  was  made  by  a  surety 
as  security  for  part  of  the  amount  of  a  mortgage,  payment  of  interest  on  the 
mortgage  was  held  enough  to  take  the  note  out  of  the  operation  of  the 
statute:  Doidinfj  v.  Ford,  11  M.  &  W.  329. 

A  payment  by  the  assignee  of  an  insolvent  joint  maker  [was  held  to  be  in- 
suflScient,  even  before  the  Mercantile  Law  Amendment  Act,  185G,  to  take  the 
case  out  of  the  statute  either  as  against  the  insolvent  or  the  other  makers], 
Davis  V.  Edwards,  7  Exch.  22.  [See  also  ex  parte  Topping,  34  L.  J.  Bankr. 
44.] 

Where  parish  officers  borrowed  money,  and  gave  a  promissory  note  to 
secure  it,  signed  A.  B.  &c.,  clmrch  wardens,  C.  D.  &c.,  overseers,  "  or  others 
for  the  time  being,"  it  was  held  that  this  form  of  signature  was  evidence  of 
an  authority  to  the  succeeding  officers  to  pay  on  account,  so  as  to  keep  the  note 
alive.  Jones  v.  Hughes,  5  Exch.  104;  [see  22  &  23  Vict.  c.  49,  ss.  1  and  4.] 
In  Neve  v.  Hollands  and  Wife  [18  Q.  B.  2G2],  21  L.  J.  289,  payment  by  a 
wife,  without  authority  of  her  husband,  on  account  of  a  note  made  by  them 
jointly  before  marriage,  was  held  insufficient  to  keep  it  alive  as  against  him 
and  her. 

With  respect  to  the  mode  of  proving  a  payment  [to  take  the  case  out  of 
the  Statute  of  Limitations],  it  has  been  held  that  if  goods  be  given  and 
accepted  in  part  payment  within  six  years,  that  [saves]  the  case  [from]  the 
statute.  Hooper  v.  Stephens,  4  A.  &  E.  71 ;  Hart  v.  N^ash,  2  C.  M.  &  R.  337. 
But  an  open  account  between  two  tradesmen,  each  charging  the  other  with 
goods,  though  containing  items  within  six  years,  has  not,  without  an  appro- 
priation of  the  charges  on  one  side  in  liquidation  of  those  on  the  other,  the 
effect  of  avoiding  the  bar ;  for  the  exception  in  9  G.  4  is  in  favour  of  pay- 
ments only:   Cottam  v.  Partridge,  4  M.  &  Gr.  271,  4  Scott,  N.   11.  819,  S.  C. ; 


TVHITCOMB   V.   WHITING.  899 

Clarke  v.  Alexander,  8  Scott,  N.  R.  147;  Foster  v.  Daicher,  6  Exch.  839. 
"VVliere,  however,  there  is  such  an  appropriation  by  going  through  the  account 
and  striiiing  a  balance,  witli  an  agreement  express  or  implied  that  the  balance 
only  shall  be  paid,  such  a  transaction  is  equivalent  to  a  payment  of  the  lesser 
debt  and  a  repayment  of  the  amount  in  liquidation  of  so  much  of  the  greater 
debt;  and  so  it  operates  to  save  the  balance  of  the  larger  debt  from  the 
effect  of  the  statute:  Ashby  v.  James,  11  M.  &  W.  542,  per  Alderson,  B.; 
Scholey  v.  Watton,  12  M.  &  W.  i>lO,  per  Parke,  B.  \_Boherts  v.  Shaio,  4  B.  &  S. 
44,  32  L.  J.  Q.  B.  308.] 

A  payment  on  account  of  the  creditor  in  part  liquidation  of  the  debt  has  of 
course  the  same  effect  as  a  payment  to  himself :  Hart  v.  Stephens,  6  Q.  B. 
937 ;  Worthington  v.  Grimsditch,  7  Q.  B.  479 ;  see  Clarke  v.  Hooper,  10  Bing. 
450.  In  Bodfjer  v.  Arch,  10  Exch.  333,  the  maintenance  of  a  child  agreed  to 
be  taken  in  satisfaction  of  interest,  was  held  to  be  a  payment  and  to  take  the 
case  out  of  the  statute.  [In  Amos  v.  Smith,  1  H.  &  C.  238,  the  trustees 
under  a  marriage  settlement  lent  the  husband  at  intei'est,  on  the  security  of 
his  and  A.'s  bond  conditioned  for  payment  of  interest,  some  of  the  trust 
money  settled  to  the  separate  use  of  the  wife.  No  interest  was  paid,  but  the 
wife  gave  the  trustees  receipts  for  it  under  an  arrangement  that  it  should  be 
considered  as  paid,  and  it  was  held  that  the  transaction  amounted  to  a  pay- 
ment or  satisfaction  so  as  to  take  the  case  out  of  the  statute.  So  also  3Iaber 
V.  Maber,  L.  R.  2  Ex.  153;  36  L.  J.  Ex.  70.] 

Stat.  9  G.  4,  cap.  14,  also  enacts,  [s.  3,]  "  that  no  indorsement  or  memoran- 
dum of  anj'  payment  made  upon  any  bill  of  exchange,  promissory  note,  or 
other  writing,  (that  is,  other  Avriting  constituting  the  contract  according  to 
the  dictum  of  Cresswell,  J.,  in  Bradley  v.  James,  13  C.  B.  822,  whei'e  it  was 
licld  that  the  statute  does  not  exclude  such  a  memorandum  altogether,  but 
only  makes  it  insufficient  of  itself),  i)j',  or  in  behalf  of,  the  person  to  whom 
such  payment  is  made,  shall  be  deemed  sufficient  proof  of  payment  to  take 
the  case  out  of  the  operation  of  the  Statutes  of  Limitation;  "  and,  that  part 
payment  may  have  that  effect,  it  must  be  observed,  that  there  are  two 
requisites  besides  proof  of  the  naked  fact  of  payment :  —  1st,  it  must  appear 
that  the  payment  w- as  made  on  account  of  a  larger  debt;  2udly,  that  that 
debt  is  the  one  sued  for  :  Tippetts  v.  Heane,  4  Tyrwh.  775.  See  the  judgment 
of  Parke,  B.,  there,  and  see  Holme  v.  Green,  1  Stark.  488.  In  Evans  v.  Davis, 
4  A.  &  E.  840;  Worthiufjton  v.  Grimsditch,  stipra ;  Burn  v.  Boulton,  2  C.  B. 
47G ;  \_ColUnson  v.  Margesson,  27  L.  J.  Exch.  305;  and  Goodwin  v.  Parton,  41 
L.  T.  N.  S.  568,]  the  evidence  was  held  sufficient  for  that  purpose.  In  Wavgh 
V.  Co2)e,  6  M.  &  W.  829,  the  evidence  was  held  insufficient.  See  further  Mills 
V.  Foickes,  5  Bing.  N.  C.  455;  Moore  v.  Strong,  1  Bing.  N.  C.  442. 

The  first  requisite  above  mentioned  involves  this  also,  that  the  paj'ment  be 
made  under  the  circumstances  which  do  not  rebut  the  implication  of  a 
promise  to  pay  the  balance ;  because  it  is  only  as  giving  rise  to  such  an  impli- 
cation, and  not  by  any  specific  effect  of  its  own,  that  a  payment  operates : 
Wainman  v.  Kinman,  I  Exch.  118  [and  see  Bigg  v.  ifoggridge,  2  H.  &  X.  567; 
Morgan  v.  Roidunds,  L.  R.  7  Q.  B.  493,  41  L.  J.  Q.  B.  187]  ;  yet  see  Goddard 
V.  Ingram,  3  Q.  B.  839 ;  \_Ex  piarte  lopping,  34  L.  J.  Bankr.  44,]  for  which 
reason  the  payment  must  also  be  before  action  brought."  Bateman  v.  Pindar, 
3  Q.  B.  574,  overruling  Yea  v.  Funraker,  2  Burr.  1099. 

The  second  requisite  mentioned  aijove  has  led  to  a  discussion  whether, 
where  there  are  two  clear  and  undisputed  debts,  either  can  be  taken  out  of 
the  statute  by  evidence  of  a  part  payment  not  specifically  appropriated  by  the 


900  WHITCOMB   Y.    AVHITING. 

clebtoi';  upon  which  question  tlic  Court  of  Common  Pleas  is  said  to  have 
incidentally  expressed  an  opinion  in  the  negative :  Burn  v.  BouUon,  2  C.  B. 
476 ;  but,  it  [has  since  been  held]  to  be  [in  general]  a  proper  question  for 
the  jury,  whether  the  payment  was  made  generally  on  account  of  Avhatevcr 
mii?lit  be  due  from  tlie  debtor  at  the  time,  and  if  so  both  the  debts  would  l)e 
saved.  [  Walker  v.  Butler,  G  E.  &  B.  506;  and  see  Cullinson  v.  Margesson,  27 
L.  J.  Exch.  305,  per  Martin,  B.]  In  Mills  v.  Fowkes,  5  Bing.  N.  C.  455,  it 
was  held  that  though  a  creditor  has  a  right  to  appropriate  a  payment  made 
generally  to  an  item  barred  by  the  Statute  of  Limitations,  still  sucli  payment 
is  not  a  payment  on  account  so  as  to  take  the  I'emainder  of  tlie  demand  out 
of  the  statute.  Accord,  Waller  v.  Lacy,  1  Sc.  N.  R.  180;  1  M.  &  Gr.  54,  S.  C. ; 
\_Nash  V.  Ilodr/son,  1  Kay,  650;  S.  C.  on  appeal,  6  De  G.  M.  &  G.  474,jjer 
Knight-Bruce,  L.  J. ;  contra  Turner,  L.  J. 

In  that  case  the  defendant  being  indebted  to  the  plaintiff  on  three  promis- 
sory notes,  one  of  which  was  for  200Z.,  on  application  by  the  plaintiff  for 
payment  of  interest,  paid  him  5^  on  account  generally.  At  the  time  of  the 
payment  tlie  200?.  note  was  the  only  one  of  the  notes  whicli  was  not  barred 
by  the  statute,  and  tlie  i)laintiff  appropriated  the  5/.  to  payment  of  interest 
on  that  note ;  and  upon  the  question  whether  the  payment  tooiv  that  note  out 
of  the  statute,  tlie  Court  of  Appeal  was  agreed  that  it  did;  liut  the  judgment 
of  Kniglit-Unice,  L.  J.,  proceeded  upon  tlie  ground  of  tlie  appropriation. 
The  Lord  Chancellor  (Cranworth)  said,  "  The  cases  show  that  a  simple  pay- 
ment of  money  does  not  take  a  debt  out  of  the  statute,  and  that  the  payment 
must  be  of  a  smaller  sum  on  account  of  a  larger.  What  I  deduce  from  them 
is,  that  where  a  payment  is  made  as  principal,  the  effect  of  it  will  l)e  to  take 
out  of  the  statute  any  debt  Avhich  is  not  baiTed  at  the  time  of  payment,  but 
that  it  will  not  revive  a  debt  which  is  then  barred ;  and  that  whei'e  tliere  are 
several  debts,  tlie  inference  will  be  that  the  payment  is  to  be  attributed  to 
those  not  burred.  What  may  be  the  effect  whei'e  there  is  a  single  debt  con- 
sisting of  several  items,  some  of  wliich  are  barred,  and  some  not,  may  be 
doubtful.  Exactly  the  same  principle  applies  if  the  payment  is  made  in 
respect  of  interest.  It  appears  to  me  that  in  this  case,  thei-e  being  three 
promissory  notes,  two  barred  and  one  not  barred,  and  a  payment  made  on 
account  of  interest  generally,  this  payment  must  be  attributed  to  the  note 
which  was  not  barred;  and  if  this  were  not  so,  the  only  effect  would  be  to 
treat  it  as  a  payment  on  account  of  all,  so  that  in  either  case  the  2001.  note 
would  be  kept  alive."] 

In  Willis  V.  Nevham,  3  Y.  &  J.  518,  the  Court  of  Exchequer  held,  that  a 
verbal  acknowledgment  of  part  payment  of  a  debt  was  not  sufficient  proof 
thereof  within  this  statute ;  the  import  of  which  they  construed  to  be,  that 
in  no  case  should  a  mere  verbal  acknowledgment  take  a  case  out  of  the 
Statute  of  Limitations,  whether  that  acknowledgment  were  of  the  existence 
of  the  debt,  or  of  the  fact  of  payment.  Vide  Trentham  v.  Deverill,  3  Bing. 
N.  C.  397.  The  authority  of  Willis  v.  Newham  was,  however,  repeatedly 
questioned,  though  it  was  acted  upon  in  Bayleij  v.  Ashton,  12  A.  &  E.  493;  4 
P.  &  D.  204,  S.  C. ;  Maghee  v.  O'Neil,  7  M.  &  W.  531 ;  Eastioood  v.  Savile, 
9  M.  &  W.  615;  Clarke  v.  Alexander,  8  Scott,  N.  R.  147,  and  the  case  has  been 
at  length  overruled  in  Cleave  v.  Jones,  6  Exch.  573,  where  the  demand  was 
upon  a  promissory  note  for  350L  and  interest,  and  the  Statute  of  Limitations 
was  saved  by  evidence  of  an  unsigned  entry  in  the  defendant's  book  in  her 
handwriting  "  1843,  Cleave's  interest  on  350Z.  —  11.  10s."  [And  see  Echcards 
V.  Jones,  1  Kay  &  J.  534.     In  Newboidd  v.  iitnith,  29  Ch.  D.  882,  an  entry  by 


WHITCOMB   Y.    WHITING.  901 

the  deceased  creditor  in  his  diary,  "  Smitli,  C  E.,  cash  on  account  of  rent  and 
interest  50/-,"  Avas  lield  inadmissible  in  evidence  on  belialf  oi'  tlie  creditor  as 
an  admission  tliat  interest  liad  been  paid,  so  as  to  revive  tlie  right  barred 
under  tlie  Statutes  of  Limitations  to  bring  a  foreclosure  action.] 

It  Avas  held,  even  before  Cleave  v.  Jones,  that  written  and  signed  evidence 
of  appropriation  may  be  confirmed  by  parol,  Bevan  v.  Gethiny,  3  Q.  B.  740; 
and  that  if  the  payment  be  proved  as  a  fact,  the  appropriation  of  that  pay- 
ment to  the  debt  which  it  is  sought  to  take  out  of  the  Statute  of  Limitations 
may  be  proved  by  an  admission,  Waters  v.  T'omlcins,  2  C.  M.  &  R.  72G.  That 
action  Avas  brought  to  recover  the  amount  of  five  notes,  one  for  100?.,  two 
for  50?.,  and  two  for  20?.  each;  the  evidence  upon  an  issue  joined  on  plea  of 
actio  non  accrevit  infra  sex  annas  was,  that  within  six  j'ears  the  maker,  the 
defendant,  on  application  to  him,  said,  his  wife  would  have  called  on  the 
holder  and  paid  money  on  account  of  the  interest  on  200?.,  but  for  their 
child's  illness;  about  a  fortnight  after  Avhich,  the  wife  called,  and  paid  15s., 
without  saying  on  what  account;  on  another  occasion  the  defendant  sent 
word  to  the  testator  that  his  wife  was  in  Wales,  or  would  have  called  icith 
the  interest;  and  that  the  wife  on  other  occasions  made  payments  to  the 
testator,  who  said,  at  the  time,  he  should  be  glad  if  the  interest  were  more 
regularly  paid.  This  evidence  was  held  to  warrant  the  jury  in  finding 
a  verdict  for  the  plaintifl".  See,  too,  Bevan  v.  Gething,  3  Q.  B.  740,  where, 
however,  Coleridge,  J.,  expressed  a  doubt  as  to  the  correctness  in  principle 
of  Waters  v.  Tomkins.  Nor  need  the  writing  Avhich  is  relied  on  for  the 
purpose  of  taking  a  debt  out  of  the  operation  of  the  statute  specify  its 
amount;  that  may  be  proved  by  parol:  Bird  v.  Gammon,  3  Bing.  N.  C.  888; 
Waller  v.  Lacy,  1  M.  &  Gr.  54,  1  Sc.  N.  R.  186,  S.  C. ;  Dickenson  v.  HatfieU, 
1  Moo.  &  R.  141 ;  Chealeij  v.  Dalby,  4  You.  &  Coll.  228;  [Sidivell  v.  Mason,  2 
H.  &  N.  30r,.] 

Wlien  a  bill  is  given  on  account  of  part  of  a  debt,  and  is  paid  by  the 
di'aAvee,  the  statute  is  not  avoided  by  such  payment,  though  it  may  be  by 
the  deliA'ery  of  the  bill,  Irving  v.  Veitch,3  M.  &  W.  90;  Ttirneij  v.  Dodwell, 
3  E.  &  B.  13G.  Whether  the  promise  implied  from  part-payment  to  the 
holder  of  a  negotiable  instrument  is  itself  negotiable,  qucere.  See  Cripj^s  v. 
Davis,  12  M.  &  W.  159.     [Gale  v.  Capern,  1  A.  &  E.  104,  per  Patteson,  J. 

It  is  perhaps  convenient  to  refer  shortly  in  this  place  to  a  question  which 
has  not  been  discussed  in  the  earlier  editions  of  these  notes,  viz.,  what 
is  a  sufficient  written  acknowledgment  to  save  the  statutes,  apart  from  the 
proviso  as  to  payment  in  section  1  of  Lord  Tenterden's  Act.  The  principles 
are  thus  summed  up  by  Mellish,  L.  J.,  in  In  re  River  Steamer  Co.,  Mitchell's 
Claim,  L.  R.  G  Ch.  at  p.  828,  which  passage  is  cited  by  Cleasby,  B.,  in  Skeet 
V.  Lindsay,  2  Ex.  D.  316,  46  L.  J.  Ex.  251.  "  There  must  be  one  of  these 
three  things  to  take  the  case  out  of  the  statute.  Either  there  must  be  an 
acknowledgment  of  the  debt  fi-om  which  a  promise  to  pay  is  to  be  implied, 
or  secondly,  there  must  be  an  unconditional  promise  to  pay  the  debt,  or' 
thirdly,  there  nnist  be  a  conditional  promise  to  pay  the  debt  and  evidence- 
that  the  condition  has  been  performed." 

With  regard  to  the  first  of  these  three  propositions,  it  should  be  observed 
that  by  a  long  train  of  authorities  commencing  Avith  Tanner  v.  Smart,  6  B.  & 
C.  603,  it  is  conclusively  settled  that  an  absolute  acknoAA'ledgment  of  the  debt 
by  itself  is  sufficient,  because  you  may  imply  from  it  an  unconditional  promise 
to  pay  the  debt,  per  Cleasby,  B.,  in  Skeet  v.  Lindsay,  %ihi  sup.  A  recent  deci- 
sion on  tliis  point  Avill  be  found  in  Green  v.  Humphreys,  26  Ch.  D.  474,  53  L. 


902  WHITCOMB    V.    WHITING. 

J.  Ch.  625,  where  the  Court  of  Appeal,  reversing  the  decision  of  Pollock,  B., 
held  that  there  was  not  siitlicient  acknowledgment. 

These  being  the  acknowledged  principles,  the  application  of  them  to  partic- 
ular cases  for  the  purpose  of  determining  whether  particular  written  expres- 
sions amounted  to  an  absolute  acknowledgment  or  an  unconditional  pi'omise, 
has  naturally  been  productive  of  much  litigation,  and  in  some  instances  has 
caused  a  remarkable  diversity  of  judicial  opinion.  See  the  cases  collected  in 
Chasemore  v.  Turner,  L.  R.  10  Q.  B.  500,  45  L.  J.  Q.  B.  66;  Quincetjv.  S'harpe, 
1  Ex.  D.  72,  45  L.  J.  Ex.  347,  and  Meyerhoff  v.  Froehlich,  4  C.  P.  D.  63.  In 
the  first  of  these  cases,  the  following  letter  written  by  the  defendant  to  one 
of  the  plaintifls  was  put  in  at  the  trial  at  Nisi  Prius.  "  My  dear  Sir.  The 
old  account  between  us  which  has  been  standing  over  so  long  has  not 
escaped  our  memory,  and  as  soon  as  we  can  get  our  aftairs  arranged,  we  will 
see  you  are  paid.  Perhaps  in  the  meantime  you  will  let  your  clerk  send  me 
an  account  of  how  it  stands."  At  the  trial  Martin,  B.,  ruled  that  the  letter 
was  sufficient  to  take  the  case  out  of  the  Statute  of  Limitations,  and  directed 
a  verdict  for  the  plaintiffs,  refusing  leave  to  move,  but  gave  a  stay  of  execu- 
tion. The  majority  of  the  Court  of  Queen's  Bench,  viz.,  Blackburn  and 
Archibald,  JJ.,  held,  Mellor,  J.,  dissenting,  that  it  was  insufficient  without 
further  evidence  and  made  absolute  a  rule  for  a  new  trial.  In  the  Exchequer 
Chamber,  however  (Lord  Coleridge,  C.  J.,  dissenting),  this  judgment  was 
reversed  by  Cleasby,  Pollock  and  Amphlett,  BB.,  and  Grove  and  Denman,  JJ., 
and  the  verdict  for  the  plaintiff  stood.  But  if  there  be  an  express  promise 
there  can  be  none  by  implication,  and  if  the  express  promise  be  a  conditional 
one  the  condition  must  be  fulfilled  :  Mojcrhoff  v.  Froehlich,  4  C.  P.  D.  63,  48 
L.  J.  C.  P.  4L  If  there  is  an  unqualified  admission  that  tliere  is  a  pending 
account  between  two  parties  which  has  to  be  settled,  that  "  is  an  admission 
from  which  you  may  infer  a  promise  that  when  the  account  is  settled  the 
balance  shall  be  Tpak\,"  jjer  Kay,  J.,  Banner  v.  Berridge,  18  Ch.  D.  274. 

An  acknowledgment  of  a  simple  contract  debt  is  insufficient  to  save  the 
statute,  unless  made  to  the  creditor  or  his  agent,  Fuller  v.  Bedman,  26 
Beav.  614;  but  an  acknowledgment  of  a  specialty  debt  will  suffice,  under 
3  &  4  W.  4,  c.  42,  s.  5,  though  made  to  a  stranger,  Moodie  v.  Bannister,  4 
Drewr.  432.] 

In  Bodfjer  v.  Arch,  10  Ex.  333,  it  was  held  that  payment  to  any  person 
acting  as  representative  of  an  intestate  accrued  for  the  benefit  of  the  admin- 
istrator when  appointed. 

\_Semhle  that  an  acknowledgment  in  a  letter  written  without  prejudice  is  of 
no  avail  if  an  offer  contained  in  it  is  not  accepted :  Re  River  Steamer  Com- 
pany, L.  R.  6  Ch.  822.] 

There  is  in  the  9  G.  4,  c.  14,  a  proviso,  "that  no  memorandum  or  other 
writing  made  necessary  by  this  act  shall  be  deemed  to  be  an  agreement 
within  any  Stamp  Act."  The  effect  of  this  appears  to  be  to  render  the  stamp 
unnecessary  where  the  agreement  is  put  in  merely  for  the  purpose  of  avoid- 
ing the  Statute  of  Limitations,  the  debt  having  been  proved  aliunde.  But  if 
it  were  put  in  as  the  only  evidence  of  a  debt  though  more  than  six  years  old, 
semble  that  it  would  require  a  stamp,  Morris  v.  Dixon,  4  A.  &  E.  845.  The 
proviso  has  been  held  to  be  inapplicable  to  the  case  of  an  unstamped  promis- 
sory note,  Jones  v.  Ryder,  4  M.  &  W.  32 ;  [but  where  a  promissory  note  made 
in  1846  was  indorsed  by  the  maker  and  the  date  altered  to  1866,  it  was  held 
that  a  new  stamp  was  not  necessary,  Bourdin  v.  Greenwood,  L.  R.  13  Eq.  281, 
41  L.  J.  Ch.  73.] 


WHITCOMB    V.    WHITIisG.  903 

1.    What    claims    barred    by    the    statute    can    be    revived.  —  It 

seems  that  the  claim,  if  not  necessarily  an  actual  debt,  must  be 
an  obligation  arising  from  an  executed  consideration  and  con- 
sequently implied  in  law. 

A  count  in  special  assumpsit  on  an  express  contract  which 
has  been  barred  by  the  statute  cannot,  in  accordance  with  prin- 
ciple, be  sustained  by  evidence  of  a  new  promise  within  six 
years ;  Carshore  v.  Huyck,  6  Barb.  583. 

The  difficulty  is  that  in  such  a  case,  as  the  plaintiff  has  to 
allege  and  prove  that  a  promise  was  actually  made  by  the  de- 
fendant at  a  certain  time,  the  reply  is  a  departure  from  the 
original  statement  of  the  cause  of  action. 

Where  indebitatus  assumj^sit  will  lie,  there  is  no  difficulty,  for, 
from  the  loan,  or  the  sale  of  deliver}-,  or  other  facts,  the  law 
implies  a  promise  to  pay,  a  promise  of  which  there  is  a  new 
breach  on  each  recurring  day  that  the  debt  continues  and 
remains  unpaid.  Primd  facie  this  relates  back  to  the  period 
when  the  debt  was  contracted,  but,  as  the  plaintiff  has  only  to 
state  and  prove  facts  from  which  such  promise  can  arise,  there 
is  nothing  inconsistent  with  this  in  the  promise  arising  at  any 
other  time. 

For  example,  the  plaintiff  alleges  that  the  defendant  became 
indebted  for  money  had  and  received,  &c.,  and  then  avers  a 
promise  to  pay,  not  existing  in  fact,  but  a  legal  inference  from 
the  premises  and  sustained  by  any  evidence  of  indebtedness  at 
the  time  the  action  was  begun.  To  a  plea  of  the  statute,  the 
plaintiff  can  show  that  the  money  was  "had  and  received" 
within  six  years,  or  an  acknoAvledgment  of  the  existence  of  the 
debt  within  that  period  which  renders  evidence  unnecessary; 
Haymaker  v.  Haymaker,  4  Oh.  St.  272 ;  Mc Curry  v.  McKesson, 
4  Jon.  510. 

The  replication  that  the  cause  of  action  accrued  within  six 
years  is  not  a  departure  but  in  the  nature  of  a  new  assignment, 
indicating  that  the  plaintiff  relies,  not  on  the  obligation  which 
arose  in  the  first  instance  from  the  receipt  of  the  consideration, 
but  on  the  promise  which  the  law  implies  on  the  indebtedness 
being  shown  at  some  later  period  by  evidence  of  an  express 
promise,  a  part  payment,  or  other  acknowledgment. 

Precisely  the  same  principles  apply  when  a  new  promise  is 
relied  upon  to  support  an  action  on  a  promissory  note  barred 
by  the  statute. 


904  WHITCOMP.   V     ^VMITTNG. 

The  plaintiff  sets  out  the  making  of  the  note  and  avers  a 
consequent  liability  and  promise  to  pay,  not  existing  in  fact 
but  implied  in  law  from  the  existence  of  the  liability. 

Whenever  by  an  acknowledgment  or  new  promise  at  any 
later  period,  the  obligation  can  be  shown  to  still  exist,  in  the 
same  way  another  implied  promise  to  pay  arises.  Hence  such 
an  acknowledgment  may  be  given  in  evidence  to  suppose  the 
implied  promise  without  any  variance  from  the  declaration ; 
Leaper  v.  Tatton,  16  East  420. 

It  is  well  settled  that  a  promise  or  acknowledgment  will  not 
affect  the  operation  of  the  statute  on  actions  of  tort ;  Oothout 
V.  Thompson,  20  Johns.  277 ;  Ott  v.  Whitworth,  8  Humph. 
494. 

2.  "What  will  remove  the  bar  of  the  statute.  —  A.  An  express 
promise  to  pay  tlie  debt.     All  the  cases  agree  on  this  point. 

B.  A  promise  to  pay  it,  not  express  but  implied  from  the 
circumstances ;  Johnson  v.  Evans,  8  Gill  155 ;  Ross  v.  Ross,  20 
Ala.  105 ;  Reener  v.  Crull,  19  111.  109 ;  Ditch  v.  Vollhardt,  82 
111.  134 ;  Sprogle  v.  Allen,  38  Md.  331 ;  Oakson  v.  Beach,  36 
Iowa  171 ;  Sigourney  v.  Drury,  14  Pick.  390 ;  Phelps  v.  Wil- 
liamson, 26  Vt.  230;  Joslyn  v.  Smith,  13  Vt.  357. 

The  important  consideration  is,  under  what  circumstances  a 
promise  will  be  implied. 

"  A  jury  will  be  authorized  and  bound  to  infer  such  promise 
from  a  (1)  clear,  (2)  unconditional  and  unqualified  admission 
of  the  existence  of  the  debt,  (3)  at  the  time  of  such  admission, 
if,  (4)  unaccompanied  with  any  refusal  to  pay  or  declaration 
indicative  of  any  intention  to  insist  on  the  Statute  of  Limita- 
tions as  a  bar." 

Shaw,  C.  J.,  in  Sigourney  v.  Drury,  14  Pick.  390 ;  Knight  v. 
House,  29  Md.  194. 

(1)    That  the  acknowledgment  must  be  "  clem- "  and  unam- 
biguous ;  see  Bryan  v.  Ware,  20  Ala.  687 ;  Grant  v.  Ashley,  7 
Eng.  762 ;  Bell  v.  Crawford,  8  Gratt.  119 ;  Ten  Eyck  v.  Wing, 
1  Mich.  40 ;  Penley  v,  Waterhouse,  3  Clarke  418 ;  Stewart  v. 
Rickens,  4  Zab.  427 ;  Conwell  v.  Buchanan,  7  Blackf .  537 ;  Rob- 
bins  V.  Farley,  2  Strob.  348 ;  Dickinson  v.  McCanry,  5  Ga.  486 
McLellan  v.  Albee,  17  Me.  184 ;  Pray  v.  Garcelon,  17  Me.  145 
Porter  v.  Hill,  4  Greenlf.  41 ;  Ventris  v.  Shaw,  14  N.  H.  422 
Shaw  V.  Newell,  1  R.  I.  488 ;  Frey  v.  Kirk,  4  Gill  and  J.  509 
Taylor  v.  Stedman,  11  Ired.  447 ;  Cross  v.  Connor,  14  Vt.  394 


WHITCOMB    V.    WHITING.  905 

White  V.  Dow,  23  Vt.  300 ;  Ayres  v.  Richards,  12  111.  146 ;  Har- 
rison V.  Handley,  1  Bibb  443. 

It  need  not  be  made  ex2:)ressly  or  in  words,  bnt  may  be  im- 
plied from  any  act  which  necessarily  presupposes  the  existence 
of  the  debt  and  an  obligation  to  pay  it ;  Bowman  v.  Downer,  22 
Vt.  532 ;  Spangler  v.  McDaniel,  3  Ind.  275 ;  Grayson  v.  Taylor, 
14  Texas  672. 

The  burden  is  on  the  plaintiff,  so  he  must  make  it  appear 
that  the  debt  was  actually  due  and  that  the  debtor,  knowing 
this,  meant  to  acknowledge  a  liability  to  pay  it;  Gibson  v. 
Grosvenor,  4  Gray  606 ;  Magberry  v.  Willoughby,  5  Neb.  370 ; 
Wakeman  v.  Sherman,  5  Seld.  88 ;  Chambers  v.  Garland,  3 
Iowa  322 ;  Pritchard  v.  Howell,  1  Wis.  131  ;  Smith  v.  Fly,  24 
Texas  345 ;  Gilmer  v.  McMurray,  7  Jon.  479 ;  Bangs  v.  Hall, 
2  Pick.  368 ;  Moore  v.  Hyman,  13  Ired.  272 ;  Goodwin  v.  Buz- 
zell,  35  Vt.  9 ;  Evans  v.  Carey,  29  Ala.  99 ;  Wilcox  v.  Williams 
5  Nev.  206 ;  Leigh  v.  Linthecum,  30  Texas  100. 

It  is  not  enough  for  the  debtor  to  admit  that  the  debt  is  due, 
unless  it  appears  that  he  means  to  pay  it ;  Wakeman  v.  Sher- 
man, 5  Seld.  85 ;  Gray  v.  McDowell,  6  Bush  375. 

Though,  in  the  absence  of  other  evidence,  a  man  that  admits 
a  debt  will  be  presumed  willing  to  pay  it ;  Chambers  v.  Gar- 
land, 3  Iowa  322 ;  Stockett  v.  Sasscer,  8  Md.  374 ;  Pritchard  v. 
Howell,  1  Wis.  131;  Evans  v.  Carey,  29  Ala.  99;  Phelps  v. 
WiUiarason,  26  Vt.  230. 

The  acknowledgment  must  be  shown  to  relate  to  the  debt 
which  is  the  cause  of  action ;  Nash  v.  Hodgson,  1  Kay  650 ; 
Stafford  v.  Bryan,  3  Wend.  532 ;  Hart  v.  Boyt,  54  Miss.  547 ; 
Martin  v.  Broach,  6  Ga.  21 ;  Lockhart  v.  Eaves,  Dud.  (S.  C.) 
321 ;  Arey  v.  Stephenson,  11  Ired.  86 ;  Brailsford  v.  James,  3 
Strob.  171 ;  Broxley  v.  Gayle,  19  Ala.  151. 

But  this  Avill  be  presumed  unless  the  existence  of  more  than 
one  debt  is  shown ;  Bailey  v.  Crane,  21  Pick.  223 ;  Woodbridge 
V.  Allen,  12  Mete.  470 ;  Gibson  v.  Grosvenor,  4  Gray  606  . 
Coles  V.  Kelsey,  2  Texas  541  ;  Smith  v.  Deeper,  10  Ired.  86 : 
Moore  v.  Hyman,  13  Ired.  272 ;  Brown  v.  State  Bank,  5  Eng. 
134 ;  Wood  v.  Wylds,  6  Eng.  754 ;  Guy  v.  Tams,  6  Gill  82 ; 
Penley  v.  Waterhouse,  3  Clark  418;  Mitchell  v.  Clay,  8  Tex. 
413;  Dobbs  v.  Humphries,  10  Bing.  446;  Corey  v.  Bath,  35 
N.  H.  530,  550;  Boyd  v.  Hurlbert,  41  Mo.  264;  Whitney  v. 
Bigelow,  4  Pick.  110. 


906  WHITCOMB    V.    WHITING. 

To  the  contrary,  apparently,  however,  see  Robl)ins  v.  Farley, 
2  Strob.  348;  Faison  v.  Bowden,  72  N.  C.  405;  Pray  v.  Garce- 
lon,  5  Shep.  145. 

Where  there  is  an  unsettled  account  containing  several 
charges  or  items,  especially  if  part  of  them  are  barred  by  the 
statute  and  part  not,  a  general  admission  of  indebtedness,  not 
naming  the  amount  due  or  mentioning  any  specific  portion,  is 
too  indefinite  to  affect  the  statute ;  Hull  v.  Richardson,  19 
Penn.  St.  388 ;  Morgan  v.  Walton,  4  Pa.  St.  321 ;  Harbold  v. 
Kuntz,  16  Pa.  St.  210 ;  Suter  v.  Sheeler,  22  Pa.  St.  308 ;  Clarke 
V.  Dutcher,  9  Cow.  674;  Buckingham  v.  Smith,  23  Conn.  453; 
Peebles  v.  Mason,  2  Dev.  367 ;  Allen  v.  Allen,  1  Bush  60 ; 
Hale  V.  Hale,  4  Humph.  183. 

When  there  is  no  doubt  as  to  what  debt  is  meant,  it  is  not 
necessary  that  the  amount  should  be  mentioned  in  the  acknowl- 
edgment, provided  it  is  certain  and  liquidated ;  Thompson  v. 
French,  10  Yerg.  452 ;  Hazlebaker  v.  Reeves,  2  Jon.  264 ;  Davis 
V.  Steiner,  14  Pa.  St.  275 ;  Dinsmore  v.  Dinsmore,  21  Me.  433. 

A  promise  to  "  settle "  an  unliquidated  claim,  or  to  "  pay 
what  is  due,"  or  to  "refer,"  may  or  may  not  be  a  sufficient 
acknowledgment.  It  is  a  question  of  intention.  In  most  cases 
it  has  been  held  insufficient.  It  is  ambiguous  whether  the 
debtor  means  to  pay  or  merely  to  adjust  or  liquidate ;  Peebles 
V.  Mason,  2  Dev.  367 ;  Faison  v.  Bowden,  72  N.  C.  405 ;  Suter 
V.  Sheeler,  22  Penn.  St.  308 ;  Harbold  v.  Kuntz,  16  Penn.  St. 
210 ;  Emerson  v.  Miller,  27  Penn.  St.  278 ;  Sutton  v.  Burruss, 
9  Leigh,  381 ;  Bell  v.  Crawford,  8  Gratt.  110 ;  Leigh  v.  Linthe- 
cum,  30  Texas  100 ;  BrodcUe  v.  Johnson,  1  Sneed  464 ;  Mills 
V.  Taber,  5  Jon.  412  ;  Loftin  v.  Aldridge,  3  Jon.  328 ;  Moore  v. 
Hyman,  13  Ired.  272 ;  Mask  v.  PhiUer,  32  Miss.  237 ;  Shaw  v. 
Allen,  1  Bus.  58;  Bray  ton  v.  Rockwell,  41  Vt.  621. 

In  others,  very  similar  remarks  have  been  held  to  remove  the 
bar ;  Hunter  v.  Kittredge,  41  Yt.  621 ;  Walker  v.  Butler,  6  E. 
&  B.  506  ;  Higdon  v.  Stewart,  17  Md.  105 ;  WarUck  v.  Peter- 
son, 58  Me.  408. 

When  the  debt  is  unliquidated,  as  a  rule,  the  amount  must 
be  specified  which  the  debtor  is  willing  to  pay. 

A  promise  not  to  plead  the  statute  has  commonly  been  re- 
garded as  the  same  thing  as  a  promise  to  pay  the  debt ;  Pad- 
dock V.  Colby,  18  Yt.  485 ;  Brown  v.  Bank,  5  Eng.  134 ;  Smith 
V.  Leeper,  10  Ired.  86 ;  Randon  v.  Toby,  11  How.  493  ;  Cooper  v. 


WHITCO>EB   V.    WHITING.  907 

Parker,  25  Vt.  502;  Noyes  v.  Hall,  28  Vt.  645;  Utica  Ins. 
Co.  V.  Bloodgood,  4  Wend.  652 ;  Allen  v.  Webster,  15  Wend. 
284. 

Part  Payment  of  a  debt  whether  in  money,  note,  or  goods  is 
usually  intended  as  an  admission  of  its  existence  and  conse- 
quently has  the  same  effect  as  any  other  unqualified  acknowl- 
edgment; Winchell  v.  Hicks,  18  N.  Y.  559;  Shoemaker  v. 
Benedict,  Kern.  176, 185  ;  Isley  v.  Jewett,  2  Mete.  168 ;  Sibley  v. 
Lumbert,  30  Me.  253. 

It  must  ap})ear  that  it  was  intended  as  a  part  payment  of  a 
greater  sum  ;  prima  facie  a  payment  is  intended  as  a  discharge 
wholly,  or  j^ro  tanto  without  relation  to  anything  else ;  Liver- 
more  V.  Rand,  26  N.  H.  85 ;  Pond  v.  Williams,  1  Gray  630 ; 
Shoemaker  v.  Benedict,  1  Kern,  176  ;  Smith  v.  Eastman,  3  Cush. 
355  ;  Prenatt  v.  Runyon,  12  Ind.  174. 

It  must  be  considered  in  the  light  of  all  the  surrounding 
circumstances ;  Smith  v.  Eastman,  3  Cush.  355 ;  Hale  v.  Morse, 
49  Conn.  481 ;  Jewett  v.  Petit,  4  Mich.  508 ;  Bell  v.  Crawford, 
8  Gratt.  110  ;  Da\as  v.  Amy,  2  Graft.  412 ;  and  should  go  to  the 
jury  like  any  other  fact ;  Hollis  v.  Palmer,  2  Bing.  (N.  C.)  713 ; 
Hodge  V.  Manley,  25  Vt.  210 ;  Armstead  v.  Brooke,  18  Ark. 
521 ;  Livermore  v.  Rand,  26  N.  H.  85 ;  Arnold  v.  Downing,  11 
Barb.  554. 

The  payment  of  interest  is  usually  an  admission  that  the 
principal  is  due  and  payable  ;  Sanford  v.  Hayes,  19  Conn.  591 ; 
Marcelin  v.  The  Creditors,  21  La.  An.  423  ;  Fryeburg  v.  Osgood, 
21  ]\Ie.  176.  But  a  part  payment  of  principal  is  not  necessarily 
any  acknowledgment  as  to  interest ;  Collyer  v.  Willock,  4 
Bing.  313. 

When  there  are  several  obligations  contracted  at  different 
times,  and  a  general  payment  without  appropriation  by  the 
debtor,  the  creditor  can  usually  appropriate  it  most  advanta- 
geously to  himself  and  revive  that  portion,  if  any,  of  the  obliga- 
tions barred  by  the  statute,  or  apply  it  generally  to  the  whole 
indebtedness ;  Peck  v.  N.  Y.  Steamship  Co.,  5  Bosw.  225 ; 
Dyer  v.  Walker,  54  Me.  18. 

Some  cases  hold  that  he  can  apply  it  to  what  debt  he  pleases, 
but  cannot  distribute  it  so  as  to  take  several  debts  out  of  the 
statute ;  Ayre  v.  Hawkins,  10  Yt.  28 ;  Goodwin  v.  Buzzell,  35 
Vt.  9. 

In  many  of  those  states  where  an  acknowledgment  or  new 


908  WHITCOMB   V.    WHITING. 

promise  is  required  by  the  statute  to  be  in  writing,  an  excep- 
tion is  made  of  an  acknowledgment  by  part  payment  which 
may  be  shown  by  parol  evidence  ;  McLaren  v.  McMartin,  36 
N.  Y.  88;  Sibley  v.  Lumbert,  30  Me.  253;  Egery  v.  Decrew, 
53  Me.  392 ;  Ketchem  v.  Hill,  42  Ind.  64. 

The  rule  is  different  in  Georgia  where  a  writing  is  required 
in  a^Ll  cases ;  Caldwell  v.  Ferrell,  20  Ga.  94 ;  Holland  v.  Chaffin, 
22  Ga.  343.  An  endorsement  of  a  part  payment  on  a  note,  not 
made  by  the  debtor,  is  no  evidence  that  the  payment  was  made ; 
Porter  v.  Blood,  5  Pick.  54;  Jones  v.  Jones,  4  N.  H.  219; 
Chandler  v.  Lawrance,  3  Mich.  261 ;  but  if  made  by  the  creditor 
before  the  statute  has  run  it  can  go  to  the  jury  as  an  admission 
against  interest,  and  consequently  available  for  both  parties ; 
Roseboom  v.  Billington,  17  Johns.  182 ;  Clapp  v.  Ingersol,  11  Me. 
83 ;  Concklin  v.  Pearson,  1  Rich.  391 ;  Haven  v.  Hacheway, 
20  Me.  245 ;  Smith  v.  Simms,  9  Ga.  418  ;  Young  v.  Perkins,  29 
Minn.  173 ;  Maskell  v.  Pooley,  12  L.  An.  661.  In  several  states 
statutes  require  an  endorsement  to  be  signed  by  the  debtor,  in 
order  to  be  in  itself  sufficient  evidence  of  payment. 

(2)  Where  an  acknowledgment  is  "  qualified "  or  "  eondi- 
tional"  the  bar  of  the  statute  is  not  removed  until  the  terms 
or  conditions  are  fulfilled ;  Cocks  v.  Weeks,  7  Hill  45 ; 
Farmers'  Bank  v.  Clarke,  4  Leigh  603  ;  Luna  v.  Edmiston,  5 
Sneed  159 ;  Hayden  v.  Johnson,  26  Vt.  758 ;  Mattocks  v. 
Chadwick,  71  Me.  313  ;  Wachler  v.  Alljee,  80  111.  47  ;  Shaw  v. 
Newell,  1  R.  I.  488  ;  Sweet  v.  Franklin,  7  R.  I.  355  ;  Wake- 
man  V.  Sherman,  4  Seld.  85 ;  Stewart  v.  Reckless,  4  Zab.  427  ; 
Bell  V.  Morrison,  1  Pet.  351 ;  Farley  v.  Kustenbader,  3  Penn. 
St.  418 ;  Pearson  v.  Darrington,  31  Ala.  227  ;  McGlensey  v. 
Fleming,  4  Dev.  &  B.  129;  Wolfe  v.  Fleming,  1  Ired.  290; 
Brenneman  v.  Edwards,  55  Iowa  374 ;  Smith  v.  Eastman,  3 
Cush.  355  ;  Mumford  v.  Freeman,  8  Mete.  432. 

(3)  The  admission  must  show  a  willingness  to  assume  an 
immediate  ohligation,  and  not  be  a  mere  expression  of  hope  or 
expectation ;  Blakeman  v.  Fonda,  41  Conn.  565 ;  Norton  v. 
Shepard,  48  Conn.  141 ;  Ecker  v.  First  Nat.  Bank,  59  Md.  291 ; 
Kirby  v.  Mills,  78  N.  C.  124 ;  Marseilles  v.  Kenton,  17  Pa.  St. 
238 ;  Oakes  v.  Mitchell,  15  Me.  360  ;  or  an  offer  to  compromise 
or  a  payment  by  way  of  compromise  ;  Brenneman  v.  Edwards, 
55  Iowa  374;  Winchester  v.  Sibley,  132  Mass.  273. 

(4)  There  must  be  nothing  in  what  is  said  at  the  time  of  the 


AVHITC031U   Y.   ^VHITI^'G.  909 

unqualified  admission  or  in  the  attendant  acts  of  the  defendant, 
inconsistent  with  an  intention  to  pay  the  obligation ;  Fries  v. 
Boisselet,  9  S.  &  R.  128 ;  Church  v.  Feterow,  2  R.  &  W.  301 ; 
Hogan  V.  Bear,  5  Watts  111 ;  Zacharias  v.  Zacharias,  23  Penn. 
St.  452;  Wesner  v.  Stern,  97  Pa.  St.  322;  Wctzell  v.  Bussard, 
11  Wheat.  315  ;  Moore  v.  Bank  of  Columbia,  G  Pet.  92  ;  Allen  v. 
Webster,  15  Wend.  284;  Stafford  v.  Richardson,  15  Wend.  302; 
Philps  V.  Stewon,  12  Vt.  256  ;  Manning  v.  Wheeler,  13  N.  H. 
486 ;  Thayer  v.  Mills,  14  Me.  300  ;  Goldsby  v.  Gentle,  5  Blackf. 
436 ;  Hay  v.  Kramer,  2  W.  &  S.  137.  Though  the  debtor  will 
not  be  allowed  to  lull  the  creditor  to  sleep  by  ambiguovis  lan- 
guage calculated  to  deceive  him. 

When  a  debtor  has  once  made  his  election  to  be  bound,  he 
cannot  afterwards  recede  from  it;  Barley  v.  Crane,  21  Pick. 
323;  Mumford  v.  Freeman,  8  Meic.  432.  The  debtor  may 
remove  the  bar  as  to  part  of  a  debt,  and  not  as  to  all  if  he  so 
wills ;  Graham  v.  Keys,  29  Penn.  St.  189 ;  McDonald  v.  Under- 
bill, 10  Bush  585. 

3.  By  ■whom  must  an  acknowledgment  or  promise  be  made  ?  — 
A.  In  G-eneral.  It  seems  well  settled  that  an  acknowledg- 
ment by  one  can  never  be  used  against  another  who  has  not 
authorized  or  ratified  it,  when  the  contract  of  each  is  several, 
though  founded  on  the  same  consideration ;  Bowcbe  v.  Hampton, 
6  Rich.  208 ;  Stowers  v.  Blackburn,  21  La.  An.  127.  For  ex- 
ample, the  acknowledgment  of  the  endorser  of  a  note  will  not 
operate  against  the  maker  or  that  of  the  maker  against  the 
endorser;  Bibb  v.  Peyton,  11  S.  &  M.  275;  Dean  v.  Munroe, 
32  Ga.  28. 

As  to  tlie  effect  of  payment  or  acknowledgment  I)}'  one  on 
the  obligation  of  the  other  in  case  of  principal  and  surety, 
see  Haight  v.  Avery,  10  Hun  252;  Nat.  Bank  v.  ]>allou,  49 
N.  Y.  155;  Dele  van  "^r.  Cotton  (Wise.),  9  N.  W.  Rep.  926,  928. 

Tlie  joint  nature  of  the  obligation  must  a[)})ear  aliunde  and 
not  merely  by  the  acknowledgment ;  Hackley  v.  Hastie,  3 
Johns.  536 ;  Shelton  v.  Cocke  3  Munf.  240 ;  Smith  v.  Ludlow, 
9  Johns.  267. 

•  B.  Joint  Debtor  or  Contractor.  —  The  decision  in  Whitcomb 
V.  Whiting,  as  to  the  effect,  as  regards  the  Statute  of  Limita- 
tions, of  unauthorized  acknowledgment  or  pa3nnent  by  a  joint 
contractor,  is  law  to-day  in  but  very  few  of  the  American  states 
or  territories.     In  some  of  them  the  courts  have  from  the  first 


910  WHITCOI^IB   V.    WHITING. 

refused  to  follow  it;  in  most  of  them  the  contrary  has  been 
established  by  statute.  The  general  rule  now  is  that  in  all 
cases  the  promise  or  acknowledgment  must  be  made  by  the 
debtor  whom  it  is  sought  to  charge,  or  his  authorized  agent ; 
Smith  V.  Ryan,  66  N.  Y.  352 ;  Kelly  v.  Weber,  27  Hun  8. 

This  rule  has  been  established  by  the  Courts  in  the  following 
states :  — 

Florida :  Tate  v.  Clements,  16  Florida  339.  Indiana  :  Con- 
key  V.  Barbour,  22  Ind.  196.  JYetv  ffampshire :  Whipple  v. 
Stevens,  22  N.  H.  219.  Pennsylvania :  Coleman  v.  Fobes,  22 
Pa.  St.  156.  Tennessee  :  Belotes  Exrs.  v.  Wynne,  7  Yer.  534 ; 
and  also  seems  to  be  the  law  in  Illinois. 

In  the  following  states  and  territories  it  has  been  embodied 
in  statute,  and  in  all  but  two  or  three  of  them  the  promise  or 
acknowledgment,  if  not  by  part  payment,  must  be  made  in 
writing  signed  by  the  party  to  be  charged:  — 

Alabama :  Code  1876,  sec.  3240.  Arizona :  Compiled  Laws 
1877,  ch.  35,  sec.  2108.  Arka7isas :  Digest  of  Stats.  1874,  ch. 
88,  sees.  4134,  4135.  California :  Code  of  Civil  Procedure,  sec. 
10360.  Colorado  :  General  Laws  1877,  ch.  60,  sec.  19.  Dakota: 
Revised  Code  1877,  part  II.  ch.  6,  sec.   73.       G-eorgia:  Code 

1873,  part  II.  title  VII.  ch.  9,  art  9,  sees.  2930-2934. 
Idaho :  General  Laws  1880,  1881,  sec.  178.  Illinois :  Revised 
Stats.  1881,  ch.  83,  sec.  16.  Indiana :  Statutes  1876,  vol.  II. 
part  II.  ch.  1,  art.  12,  sees.  220-223.  Iowa :  Revised  Code  1880, 
title  XVII.  ch.  2,  sec.  2539.  Kansas  :  Compiled  Laws,  ch.  80,  art. 
3,  sec.  24.  Louisiana :  R.  S.  1876,  sec.  2818.  3Iaine  :  Revised 
Stats.  1883,  ch.  81,  sees.  97-100.  3Iassachusetts  :  Public  Stat- 
utes 1882,  title  V.  ch.  197,  sees.  15-18.  Michigan :  Compiled 
Laws  1871,  sees.  7164,  7165.  Minnesota  :  General  Stats,  ch.  66, 
title  II.  sec.  24.  Mississijjpi :  Revised  Code,  1880,  ch.  76,  sec. 
2688.  Missouri :  Revised  Stats.  1879,  ch.  48,  sees.  3248,  3250. 
Montana:  Revised  Stats.  1879,  fu'st  div.,  title  III.  sec.  53. 
Nebraska :  Compiled  Stats,  part  II.  title  II.  sec.  22.  Nevada : 
Compiled   Laws    1873,    sec.  1045.      Neio  Jersey :  Revision  of 

1874,  Lim.  of  actions,  sees.  10,11.  New  Mexico:  General  Laws, 
art.  32,  ch.  73,  sec.  13.  New  York :  Code  of  Civil  Procedure, 
sec.  395.  North  Carolina:  Code  of  Civil  Procedure,  ch.  17, 
title  IV.  sees.  50-52.  Ohio:  Revised  Stats.  1880,  sec.  4992. 
Oregon :  Civil  Code,  ch.  1,  title  II.  sec.  24.  South  Carolina : 
Code  of  Procedure,  sec,  133.     Texas :  Revised  Stats.  1879,  art. 


WHITCOMB   V.    WHITING.  911 

8219.  Utah:  Compiled  Laws  1876,  title  XVIII.  Vermont: 
Revised  Laws  1880,  cli.  50,  sees.  971-977.  Virginia  :  Code  1873, 
title  XLV.  ch.  146,  sec.  10.  Wasliington  Territory  :  Code,  sec.  44. 
West  Vin/inia  :  Revised  Stats.  1870,  eh.  119,  sec.  8.  Wiscoiisin: 
Revised  Stats.  1878,  sees.  4243-4248.  Wyominu :  Compiled 
Laws  1876,  ch.  13,  sec.  21. 

This  leaves  only  four  states  where  possibly  it  would  be  still 
followed  :  Connecticut,  Delaware,  Maryland,  and  Rhode  Island; 
Caldwell  v.  Sigourney,  19  Conn.  37 ;  Schindel  v.  Gates,  46  Md. 
604;  Wheelock  v.  Doolittle,  18  R.  I.  440. 

In  jNIaryland,  however,  there  is  the  limitation  that  the  ac- 
knowledgment must  be  made  before  the  statute  has  once  run, 
on  the  ground  that  the  common  interest  which  alone  makes  the 
admission  of  one  debtor  binding  on  another  ceases  whenever 
the  statute  takes  effect,  and,  therefore,  they  are  no  more  respon- 
sible for  each  other's  words  and  actions  than  mere  strangers. 

Ratification  may  take  the  place  of  authorization,  but  mere 
neglect  by  one  not  actually  present  to  disclaim  the  act  of  a  co- 
contractor  on  hearing  of  it,  will  not  be  enough  to  ratify  his  ac- 
knoAvledgment ;  Littlefield  v.  Littlefield,  91  N.  Y.  203 ;  Gould 
V.  Cayuo^i  Bank,  86  N.  Y.  75 ;  Glick  v.  Crist,  37  Ohio  St.  388 ; 
Mainzinger  v.  Mohr,  41  Mich.  685 ;  Whipple  v.  Stevens,  2  Fos. 
227. 

C.  Partner.  —  Before  dissolution,  in  accordance  with  the 
general  rule,  one  partner  can  bind  another  by  an  acknowledg- 
ment, if  given  in  the  ordinary  course  of  business,  the  partner- 
ship relation  making  each  the  agent  of  the  others.  After 
dissolution  they  are  regarded  in  the  same  way  as  other  joint 
obligors;  Baker  v.  Stackpole,  9  Cow.  420;  Yale  v.  Eames,  1 
Mete.  486 ;  National  Bank  v.  Norton,  1  Hill  572 :  Mitchell  v. 
Ostrom,  2  Hill  520  j  Schoneman  v.  Fegley,  7  Pa.  St.  433;  Clark 
V.  Brown,  86  Pa.  St.  502;  Lazarus  v.  Fuller,  89  Pa.  St.  331; 
Daniel  v.  Nelson,  10  B.  Mon.  316:  Hamilton  v.  Summers,  12  B. 
Mon.  11 ;  Hamilton  v.  Seaman,  1  Car.  185;  Palmer  v.  Dodge,  4 
Ohio  St.  21 ;  Tate  v.  Clements,  16  Fla.  339 ;  Hance  v.  Hair,  25 
Ohio  St.  349;  Campbell  v.  Brown,  86  N.  C.  376. 

So  where  Whitcomb  v.  ^Miiting  is  followed,  one  partner  of 
such  firm  can  still  by  an  acknowledgment  revive  a  debt  or  con- 
tract as  to  all ;  Austin  v.  Bostwick,  9  Conn.  496 ;  Caldwell  v. 
Sigourney,  19  Conn.  37 ;  Turner  v.  Ross,  1  R.  I.  88 ;  Wheelock 
V.  Doolittle,  18  R.  I.  440.     And  where  Wliitcomb  v.  Whiting  is 


912  WHITCOMB    V.   WHITING. 

not  followed  a  fortiori^  unless  expressly  authorized,  he  can  re- 
vive it  only  as  against  himself ;  Bell  v.  Morrison,  1  Pet.  351 ; 
Exeter  Bank  v.  Sullivan,  6  N.  H.  12-1 ;  Steele  v.  Jennings,  1 
McMull.  297;  Beloles  Ex'rs  v.  Wynne,  7  Yerg.  534;  Muse  v. 
Donelson,  2  Humph.  166 :  Yandes  v.  Le  Favour,  2  Blackf.  371 ; 
Dickerson  v.  Turner,  12  Ind.  239;  Lowther  v.  Chapell,  8  Ala. 
353 ;  Levy  v.  Cadet,  17  S.  &  R.  126 ;  Searight  v.  Craighead,  1 
P.  &  W.  135  ;  Fonte  v.  Bacon,  24  Miss.  156 ;  Briscol  v.  Anke- 
tell,  28  Miss.  361 ;  Palmer  v.  Dodge,  4  Ohio  St.  21,  36 ;  Myatts 
V.  Bell,  41  Ala.  222;  Bush  v.  Stowell,  71  Pa.  St.  208;  Kallen- 
bach  V.  Dickinson,  100  111.  427;  Mayberry  v.  Willoughby,  5 
Neb.  370. 

Payment  or  other  acknowledgment  by  one  partner  of  a  dis- 
solved firm,  under  the  direction  of  the  other,  binds  both  ;  Haight 
V.  Avery,  16  Hun  252  ;  McConnell  v.  Merrill,  53  Vt.  149. 

The  same  is  true,  in  all  similar  cases,  for  instance,  when  two 
of  three  sureties  referred  the  creditor  to  the  principal,  who 
made  a  partial  payment,  the  debt  was  held  to  be  renewed  as  to 
them,  but  not  against  the  third  surety  who  was  ignorant  of  the 
transaction ;  Winchell  v.  Hicks,  18  N.  Y.  559. 

Proof  that  the  firm  was  dissolved  will  not  be  a  sufiicient 
answer  to  a  promise  or  acknowledgment  by  one  of  the  partners, 
unless  it  is  shown  that  notice  was  given  to  the  creditor ;  Tap- 
pan  V.  Kimball,  30  N.  H.  136  ;  Forbes  v.  Garfield,  32  Hun  389. 

D.  Executor  or  Administrator.  —  In  many  of  the  earlier  and 
some  recent  decisions  an  acknowledgment  or  promise  by  an 
executor  or  administrator  is  held  to  have  the  same  effect  in 
removing  the  bar  of  the  statute  as  if  it  had  been  made  by  the 
debtor  in  his  Ufetime  ;  Whitaker  v.  "Whitaker,  6  Johns.  112 ; 
Larason  v.  Lambert,  7  Halls  247 ;  Chambers  v.  Fennemore,  4 
Harr.  368 ;  Baxter  v.  Penniman,  8  Mass.  133 ;  Emerson  v. 
Thompson,  16  Mass.  429;  Foster  v.  Starkie,  12  Cush.  324; 
Whitney  v.  Bigelow,  4  Peck  110,  113 ;  Semmes  v.  Magruder, 
10  Md.  242;  Walch  v.  McGrath,  59,  Iowa  519;  Black  v.  Do- 
man,  51  Mo.  31 ;  Ecker  v.  First  Nat.  Bank,  59  Md.  291 ;  Griffin 
V.  The  Justices,  17  En.  96 ;  Shreve  v.  Joyce,  36  N.  J.  Law  44 ; 
Northcut  V.  Wilkinson,  12  B.  Mon.  408 ;  Badger  v.  Gilmore,  33 
N.  H.  361. 

The  weight  of  authority  is  now  against  this  proposition ; 
Oakes  v.  Mitchell,  15  Me.  360 ;  Bunker  v.  Athearn,  35  Me.  364; 
Bloodgood  V.  Bruen,  8  N.  Y.  362 ;  Cayuga  Bank  v.  Bennett,  5 


AVHITCOMB    V.    WHITING.  913 

Hiil  236 ;  Mead  v.  Jenkins,  4  Redf.  369  (bnt  see  contra  later 
New  York  cases ;  Cotter  v.  Quinlan,  2  Dem,  29  ;  Matter  of 
])unn,  5  Dem.  124);  Ciples  v.  Alexander.  2  Cons.  R.  767; 
Tullock  V.  Dunn,  Ry.  &  M.  446 ;  Caruthers  v.  Mardiss,  3  Ala. 
599  ;  Conoway  v.  Spicer,  5  llarr.  425  ;  Fritz  v.  Thomas,  1  Whart. 
71 ;  Reynolds  v.  Hamilton,  7  Watts  420  ;  Forney  v.  Benedict, 
5  Penn.  St.  225;  Clark  v.  Maquire,  35  Penn.  St.  259;  Patter- 
son V.  Cobb,  4  Fla.  481 ;  Henderson  v.  Illsley,  11  Sm.  &  M.  9 ; 
Peck  V.  Botsford,  7  Conn.  172;  Steel  v.  Steel,  2  Jon.  64;  Moore 
V.  HillelHout.  14  Texas  312. 

A  few  cases  have  attempted  to  draw  a  distinction  between  a 
promise  or  part  payment  and  a  mere  acknowledgment,  but  there 
seems  none  in  principle ;  Baxter  v.  Penniman,  8  Mass.  133 ; 
Bloodgood  V.  Bruen,  8  N.  Y.  362. 

In  others,  it  has  been  intimated  that  an  acknowledgment  or 
promise  l)y  all  of  several  executors  or  administrators  will  re- 
move the  l)ar  of  the  statute  Avhen  the  same  by  part  of  their 
number  would  not ;  Conoway  v.  Spicer,  2  Harr.  425 ;  Hueston 
V.  Hueston,  2  Ohio  St.  488  ;  Bloodgood  v.  Bruen,  4  N.  Y,  362, 
370  ;  Caruthers  v.  Mardiss,  3  Ala.  599  ;  Cayuga  Bank  v.  Bennett, 
5  Hill  236. 

This  distinction  has  been  expressly  repudiated  in  many 
states,  and  it  has  been  held  that  an  express  promise  by  one  of 
several  executors  or  administrators  will  take  the  case  out  of 
the  statute  as  to  all ;  Johnson  v.  Beardslee,  15  Johns.  3  ;  Briggs 
V.  Ex'rs  of  Starke,  2  Cons.  R.  Ill ;  Hords  Admrs.  v.  Lee,  4 
Mon.  36 ;  Griffin  v.  Justices,  17  Ga.  96 ;  Shreve  v.  Joyce,  36 
N.  J.  Law  44. 

The  matter  is  now  quite  generally  regulated  by  statute. 

E.  Assifpiee  of  Insolvent  Debtor.  —  In  Clark  v.  Chambers 
(Neb.  1885),  22  N.  W.  Rep.  229,  it  was  held,  citing ;  Marienthal 
V.  Master,  16  Ohio  566  ;  Stoddard  v.  Doane,  7  Gray  (Mass.)  387; 
Pickett  V.  King,  38  Barb.  193 ;  Roosevelt  v.  Mark,  6  Johns.  Ch. 
266 ;  that  the  payment  of  a  dividend  by  the  assignee  would  not 
take  the  residue  of  the  debt  out  of  the  statute,  the  Court  re- 
marking, '•'-  While  it  cannot  be  said  that  the  argument  is  all  on 
the  side  of  the  above  cases,  and  there  are  high  authorities  hold- 
ing the  other  way  of  tliinking,  yet  I  think  the  weight  of  reason 
as  well  as  of  authority  is  with  them. 

(4)  To  ■whom  must  the  promise  or  acknovylcdgmeut  be  made  ? 
—  Li  many  of  the  earlier  cases  it  was  held  that  any  acknowledg- 


914  WHITCOMB   V.    WHITING. 

ment  from  which  the  continued  existence  of  debt  could  be 
inferred  was  sufficient  whether  made  to  a  third  party  or  to  the 
plaintiff  in  the  action;  Newkirk  v.  Campbell,  5  Ilarr.  380; 
McRae  v.  Kennon,  1  Ala.  225 ;  Soulden  v.  Van  Rensselaer,  9 
Wend.  297 ;  Titus  v.  Ash,  24  N.  H.  319 ;  Philips  v.  Peters,  21 
Barb.  351 ;  Watkins  v.  Stevens,  4  Barb.  168 ;  Carshore  v.  Huyck, 

6  Barb.  585  ;  Whitney  v.  Bigelow,  4  Pick.  110  ;  Minkler  v.  Mink- 
ler,  16  Vt.  193  ;  Oliver  v.  Gray,  1  Harr.  &  G.  204  ;  Bird  v.  Adams, 

7  Ga.  505  ;  St.  John  v.  Garron,  4  Post.  225  ;  Edmundson  v.  Penny, 
1  Penn.  St.  335 ;  Hassenger  v.  Solus,  5  S.  &  R.  416 ;  Evans  v. 
Carey,  29  Ala.  99 ;  Criswell  v.  Criswell. 

The  later  cases  make  a  distinction  between  an  acknowledg- 
ment to  a  third  person,  not  intended  to  reach  the  ear  of  the 
creditor,  and  one  where  the  expectation  was  that  it  Avould  be 
conveyed  to  him  and  influence  his  conduct.  In  the  first  in- 
stance holding  that  the  bar  of  the  statute  was  not  removed ; 
Bloodgood  V.  Bruen,  4  Sandf.  427;  Wakeman  v.  Sherman,  5 
Sandf.  85 ;  Kyle  v.  Wells,  17  Penn.  St.  286 ;  Gillingham  v.  Gil- 
lingham,  17  Penn.  St.  302;  Pearson  v.  Darrington,  32  Ala.  227; 
Allen  V.  Collier,  70  Mo.  138 ;  McGrew  v.  Forsyth,  80  111.  47 ; 
Fletcher  v.  Updike,  67  Barb.  364;  Reeves  v.  Correll,  19  111. 
189 ;  McKinney  v.  Snyder,  78  Penn.  St.  497 ;  but  that  it  was  in 
the  latter ;  Winterton  v.  Winterton,  7  Hun  230 ;  Wakeman  v. 
Sherman,  5  Sel.  85,  92 ;  2  Story  Eq.  Seel.  1521 ;  Collett  v. 
Frazier,  3  Jon.  Eq.  80 ;  Jordan  v.  Hubbard,  26  Ala.  433 ; 
Evans  v.  Carey,  29  Ala.  99 ;  Criswell  v.  Criswell,  59  Pa.  St. 
130. 

It  seems  to  be  a  question  of  intention  in  any  case,  and  the 
proper  test  should  be  whether  the  debtor  intends  to  make  an 
irrevocable  engagement  to  pay  the  debt  to  the  creditor.  This 
appearing,  it  is  immaterial  to  whom  the  acknowledgment  or 
promise  is  made ;  Bloodgood  v.  Bruen,  11  N.  Y.  362,  367 ; 
Evans  v.  Carey,  29  Ala.  99 ;  Criswell  v.  Criswell,  59  Pa.  St. 
130 ;  Black  v.  White,  13  S.  C.  37 ;  DeForest  v.  Warner,  98  N.  Y. 
217. 

The  weight  of  authority  seems  to  establish  that  a  promise  or 
acknowledgment  by  the  maker  or  acceptor  of  a  promissory  note 
or  bill  of  exchange,  made  to  one  of  the  parties,  will  take  the 
debt  out  of  the  statute  as  to  all,  though  the  one  to  whom  it 
was  made  had  at  the  time  transferred  the  instrument ;  Dean  v. 
Hewit,  5  Wend.  257 ;  Pinkerton  v.  Bailey,  8  Wend.  600 ;  Bad- 


WHITCOMB   V.   WHITING.  915 

ger  V.  Gilmore,  33  N.  H.  361;  Way  v.  Sperry,  6  Cush.  288; 
Cripps  V.  Davis,  12  M.  &  W.  159. 

5.  When.  —  The  distinction  above  alluded  to  as  made  in 
Maryland,  between  the  office  of  an  acknowledgment  made  be- 
fore the  statute  has  run,  and  one  made  afterwards,  has  been 
noticed  elsewhere,  but  the  reason  given  seems  to  limit  it  to  the 
case  of  co-obligor. 

The  fact  that  the  statute  has  run,  may,  however,  be  very 
material  as  showing  intention.  An  act  that  would  indicate  an 
intention  to  acknowledge  a  debt  before  the  statute  had  run, 
might  not  be  sufficient  to  show  such  intention  afterwards ; 
Matter  of  Dunn,  5  Dem.  (N.  Y.)  124. 

6.  Form  of  pleading.  —  It  is  Avell  settled,  in  accordance  with 
the  foregoing,  that  in  actions  at  law  the  new  promise  is  proper 
matter  for  a  replieation,  and  not  for  tlie  original  statement  of 
the  cause  of  action ;  Guy  v.  Tams,  6  Gill  82 ;  Little  v.  Blunt, 
9  Pick.  488 ;  :Martin  v.  Williams,  17  Johns.  380 ;  Van  Allen  v. 
Feltz,  32  Barb.  139;  Biscoe  v.  Stone,  6  Eng.  39 ;  Tompkins  y. 
Brown,  1  Dem.  247 ;  Watkins  v.  Stevens,  4  Barb.  168 ;  Titus 
V.  Ash,  24  N.  H.  319 ;  Shackleford  v.  Douglass,  31  Miss.  95 ; 
Way  V.  Sperry,  6  Cush.  238. 

The  reason  is  often  stated  to  be  that  the  new  promise  is 
only  a  matter  of  evidence  and  does  not  create  a  new  cause  of 
action ;  Dean  v,  Hewit,  5  Wend.  257 ;  Carshore  v.  Huyck,  6 
Barb.  583. 

This,  as  we  have  seen,  is  not  strictly  correct.  The  recovery 
is  on  a  new  cause  of  action,  though,  owing  to  the  genei'al  form 
of  j)leading,  the  declaration  does  not  show  it.  The  mistake 
seems  to  have  been  in  regarding  the  declaration  as  on  the 
original  cause  of  action,  whereas  from  the  first  it  is  based  on 
the  one  arising  at  the  time  of  the  new  promise  or  acknowledg- 
ment, and  the  reply  by  way  of  new  assignment  makes  this  clear ; 
Keener  v.  Crull,  19  111.  189:  Briscoe  v.  Anketell,  28  Miss.  361; 
Stewart  v.  Reckless,  4  Zab.  427,  429. 


MOSTYN   V.   FABRIGAS. 


MICHAELMAS.  — lo  GEO.  3,  B.  R. 

[UKPORTEU    COWr.    Hil.] 

Trespass  and  false  imprisonment  lies  in  England  hy  a  native 
Minorquin,  against  a  governor  of  Minorca^  for  such  injury 
committed  hy  him  in  3Iinorca. 

Jf  the  impriso7i')ne)it  teas  justifiable,  the  governor  must  plead  his 
authority  specially  (a). 

On  the  8tli  of  -luiie,  in  last  term,  Mr.  Justice  G-ould  came 
personally  into  court  to  acknowledge  his  seal  affixed  to  a  bill 
of  exceptions  in  this  case;  and  errors  having  been  assigned 
thereupon,  they  Avere  now  argued. 

This  was  an  action  of  trespass,  brought  in  the  Court  of  Com- 
mon Pleas,  by  Anthony  Fabrigas  against  John  jMostyn,  for  an 
assault  and  false  imprisonment :  in  which  the  plaintiff  declared 
that  the  defendant  on  the  1st  of  September,  in  the  year  1771, 
with  force  and  arms,  «&:c.,  made  an  assault  upon  the  said 
Anthou}'  at  Minorca  (towit^  at  London  aforesaid,  in  the  parish 
of  St.  Mary-le-Bou\  in  the  word  of  Cheap,  and  beat,  wounded,  and 
ill-treated  him,  and  then  and  there  imprisoned  him,  and  kept 
and  detained  him  in  prison  there  for  a  long  time,  (to  tvif)  for 
the  space  of  ten  months,  without  any  reasonable  or  probable 
cause,  contrary  to  the  laws  and  customs  of  this  realm,  and 
against  the  will  of  the  said  Anthony,  and  compelled  him  to 
depart  from  Minorca  aforesaid,  where  he  was  then  dwelling  and 
resident,  and  carried,  and  caused  to  be  carried,  the  said 
Anthony  from  Minorca,  aforesaid,  to  Carthagena,  in  the  domin- 
ions of  the  King  of  Spain,  &c.,  to  the  plaintiff's  damage  of 
10,000Z. 

The  defendant  pleaded,  1st,  Not  guilty ;  upon  which  issue 

(a)  See  Briant  v.  Clntten,  5  Dowl.  Q>C>. 
916 


MDSTYX    V.    FABIIIGAS.  917 

was  joined.  2iidly.  A  special  justification,  that  the  defendant 
at  that  time,  &c.,  and  long  before,  was  goveiiior  of  the  said 
Ishmd  of  Minorca,  and  during  all  that  time  was  invested  with 
and  did  exercise  all  the  powers,  privileges,  and  authorities,  civil 
and  military,  belonging  to  the  government  of  the  said  Island  of 
Minorca,  in  parts  beyond  the  seas ;  and  the  said  Anthony, 
before  the  said  time  when,  &c.,  to  ivit,  on  the  said  1st  of  Sep- 
tember, in  the  year  aforesaid,  at  the  Island  of  Minorca  afore- 
said, was  guilty  of  a  riot,  and  was  endeavouring  to  raise  a 
mutiny  among  the  inhabitants  of  the  said  island,  in  breach  of 
the  peace  ;  whereupon  the  said  John,  so  being  governor  of  the 
said  island  of  Minorca  as  aforesaid,  at  the  same  time,  when,  &c., 
in  order  to  preserve  the  peace  and  government  of  the  said 
island,  was  obliged  to  and  did  then  and  there  order  the  said 
Anthony  to  be  banished  from  the  said  island  of  Jlinorca;  and, 
in  order  to  banish  the  said  Anthony,  did  then  and  there  gently 
lay  hands  upon  the  said  Anthony,  and  did  then  and  there  seize 
and  arrest  him,  and  did  keep  and  detain  the  said  Anthony,  before 
he  could  be  banished  from  the  said  island,  for  a  short  space  of 
time,  to  wit,  for  the  space  of  six  days  then  next  following; 
and  afterwards,  to  ivit,  on  the  7th  of  September,  in  the  year 
aforesaid,  at  Minorca,  aforesaid,  did  carry  and  cause  to  be  carried 
the  said  Anthony  on  board  a  certain  vessel  from  the  island  of 
Minorca  aforesaid  to  Carthagena  aforesaid,  as  it  was  lawful  for 
him  to  do,  for  the  cause  aforesaid ;  which  are  the  same  making 
the  said  assault  upon  the  said  Anthony  in  the  first  count  of  the 
said  declaration  mentioned,  and  beating  and  ill-treating  him, 
and  imprisoning  him,  and  keeping  and  detaining  him  in  prison 
for  the  said  space  or  time,  in  the  said  first  count  of  the  said 
declaration  mentioned,  and  compelling  the  said  Anthony  to 
depart  from  Minorca  aforesaid,  and  carrying  and  causing  to  be 
carried  the  said  Anthony  from  Minorca  to  Carthagena,  in  the 
dominions  of  the  King  of  Spain,  whereof  the  said  Anthony  has 
above  complained  against  him,  and  this  he  is  ready  to  verify ; 
wherefore  he  prays  judgment,  &c.,  without  this,  that  the  said 
John  was  gnilty  of  the  said  trespass,  assault  and  imprisonment, 
"at  the  parish  of  St.  Mary-le-Bow,  in  the  ward  of  Cheap,  or  else- 
where, out  of  the  said  island  of  Minorca  aforesaid,  Replication 
de  injuria  sud  prop)rid  absque  tali  causd.  At  the  trial  the  jury 
gave  a  verdict  for  the  plaintiff,  upon  both  issues,  with  3,000?. 
damages,  and  90Z.  costs. 


918  MOSTVN    V.    FAUKKiAS. 

The  substance  of  the  evidence,  as  stated  by  the  l)ill  ol"  excep- 
tions, was  as  follows :  on  behalf  of  tlie  plaintiff,  that  the  de- 
fendant at  the  island  of  Minorca  on  the  17th  of  September, 
1771,  seized  the  plaintiff,  and,  without  any  trial,  imprisoned 
him  for  the  space  of  six  days  against  his  will,  and  banished  him 
for  the  space  of  twelve  months  from  the  said  island  of  Minorca 
to  Carthagena  in  Spain.  On  behalf  of  the  defendant,  that  the 
plaintiff  was  a  native  of  Minorca  and  at  the  time  of  seizing, 
imprisoning,  and  banishing  him  as  aforesaid,  was  an  inhabitant 
of  and  residing  in  the  uh-raval  of  St.  Phillip's,  in  the  said 
island;  that  Minorca  was  ceded  to  the  crown  of  Great  Britain, 
by  the  treaty  of  Utrecht,  in  the  year  1718.  That  the  Minor- 
quins  are  in  general  governed  by  the  Spanish  laws,  but  when 
it  serves  their  purpose  plead  the  Unglish  laws :  that  there  are 
certain  magistrates,  called  the  Chief  Justice  Criminal,  and  the 
Chief  Justice  Civil,  in  the  said  island :  that  the  said  island  is 
divided  into  four  districts,  exclusive  of  the  Arraval  of  St  Phil- 
lip's ;  which  the  witness  always  understood  to  be  separate  and 
distinct  from  the  others,  and  under  the  immediate  order  of  the 
governor ;  so  that  no  magistrate  of  3Iahon  could  go  there  to 
exercise  any  function,  without  leave  tirst  had  from  the  governor : 
that  the  Arraval  of  St.  Phillip's  is  surrf)unded  by  a  line  wall 
on  one  side,  and  on  the  other  by  the  sea,  and  is  called  the 
Hot/alt//,  where  the  governor  has  greater  power  than  anywhere 
else  in  the  island ;  and  where  the  judges  cannot  interfere  but 
by  the  governor's  consent :  that  nothing  can  be  executed  in 
the  Arraval  but  by  the  governor's  leave,  and  the  judges  have 
applied  to  him,  the  witness,  for  the  governor's  leave  to  execute 
process  there.  That  for  the  trial  of  murder,  and  other  great 
offences  committed  within  the  said  Arraval,  upon  application 
to  the  governor,  he  generally  appoints  the  assesseur  criminel  of 
Mahon,  and  for  lesser  offences,  the  mustastaph ;  and  that  the 
said  John  Mostyn,  at  the  time  of  the  seizing,  imprisoning,  and 
banishing  the  said  Anthony,  was  the  governor  of  the  said 
island  of  Minorca,  by  virtue  of  certain  letters  patent  of  his 
present  Majesty.  Being  so  governor  of  the  said  island,  he 
caused  the  said  Anthony  to  be  seized,  imprisoned,  and  banished, 
as  aforesaid,  without  any  reasonable  or  probable  cause,  or  any 
other  matter  alleged  in  his  plea,  or  any  act  tending  thereto. 

This  case  was  argued  this  term  by  Mr.  Puller,  for  the  plain- 
tiff in  error,  and  Mr.  Peckham,  for  the  defendant.     Afterwards 


MOSTYN    V.    FABKIGAS.  919 

in  Hilary  Term,  1775,  by  Mr.  Serjeant  Walke?-,  for  the  plaintiff, 
and  ]\Ir.  Serjeant  Glynn^  for  the  defendant. 

For  the  plaintiff  in  error.  There  are  two  questions,  1st, 
Whether  in  any  case  an  action  can  be  maintained  in  this 
country  for  an  imprisonment  committed  at  3Iinorca,  upon  a 
native  of  that  place  ? 

2ndly.  Supposing  an  action  will  lie  against  any  other  person, 
whether  it  can  be  maintained  against  the  governor  acting  as 
such  in  the  peculiar  district  of  the  Arraval  of  St.  Phillip's? 

In  the  discussion  of  both  these  questions,  the  constitution 
of  the  island  of  Minorca  and  of  the  Arraval  of  St.  Phillip's., 
are  material.  Upon  the  record  it  appears,  that  by  the  treaty 
of  Utrecht,  the  inhabitants  had  their  own  property  and  laws 
preserved  to  them.  The  record  further  states  that  the  Arraval 
of  St.  Phillip's,  where  the  present  cause  of  action  arose,  is  sub- 
ject to  the  immediate  control  and  order  of  the  governor  only, 
and  that  no  judge  of  the  island  can  execute  any  function  there, 
without  the  particular  leave  of  the  governor  for  that  purpose. 
1st.  If  that  be  so,  and  the  lex  loci  differs  from  the  law  of  this 
countr}-;  the  lex  loci  must  decide,  and  not  the  law  of  this  coun- 
try. The  case  of  Robinson  v.  Bland,  2  Bur.  1078,  does  not 
interfere  with  this  position ;  for  the  doctrine  laid  down  in  that 
case  is,  that  where  a  transaction  is  entered  into  between  British 
subjects  with  a  view  to  the  law  of  England,  the  law  of  the 
place  can  never  be  the  rule  which  is  to  govern.  But  Avhere 
an  act  is  done,  as  in  this  case,  which  by  the  law  of  England 
would  be  a  crime,  but  in  the  country  where  it  is  committed  is 
no  crime  at  all,  the  lex  loci  cannot  but  be  the  rule.  It  was  so 
held  by  Lord  Chief  Justice  Pratt,  in  the  case  of  Pons  v.  Johiv- 
son,  and  in  a  like  case  of  Ballister  v.  Johnson,  sittings  after 
Trinity  Term,  1765. 

2nd.  In  criminal  cases,  an  offence  committed  in  foreign  parts 
cannot,  except  by  particular  statutes,  be  tried  in  this  country : 
1  Vesey,  246.  East  India  Compang  v.  Campbell.  If  crimes  com- 
mitted abroad  cannot  be  tried  here,  much  less  ought  civil  in- 
juries, because  the  latter  depend  upon  the  i^olice  and  constitu- 
•tion  of  the  country  where  they  occur,  and  the  same  conduct 
may  be  actionable  in  one  country,  which  is  justifiable  in 
anotlier.  But  in  crimes,  as  murder,  perjury,  and  many  other 
offences,  the  laws  of  most  countries  take  for  their  basis  the  law 
of  God,  and  the  law  of  nature ;  and,  therefore,  though  the  trial 


920  MOSTVN    V.    FAKUKIAS. 

be  in  a  diiferent  country  from  that  in  which  the  offence  was 
comniitted,  there  is  a  greater  prolxibility  of  distributing  equal 
justice  in  such  cases  than  in  civil  actions.  In  Keilwey,  202,  it 
was  held  that  the  Court  of  Chancery  cannot  entertain  a  suit 
for  dower  in  the  Isle  of  3Ian,  though  it  is  part  of  the  territorial 
dominions  of  the  crown  of  England.  3rd.  The  cases  where  the 
courts  of  Westminster  have  taken  cognizance  of  transactions 
arising  abroad,  seem  to  be  Avholly  on  contracts,  where  the  laws 
of  the  foreign  country  have  agreed  with  the  laws  of  England, 
and  between  English  subjects ;  and  even  there  it  is  done  by  a 
legal  fiction ;  namely,  by  supposing  under  a  videlicet,  that  the 
cause  of  action  did  arise  within  tliis  country,  and  that  the  place 
abroad  lay  either  in  London  or  Islinr/ton.  But  where  it  appears 
upon  the  face  of  the  record,  that  the  cause  of  action  did  arise 
in  foreign  parts,  there  it  has  been  held  that  the  court  has  no 
jurisdiction.  2  Lutw.  946.  Assault  and  false  imprisonment  of 
the  plaintiff,  at  Fort  St.  George,  in  the  East  Indies,  in  parts  be- 
yond the  seas ;  viz.,  at  London,  in  the  parish  of  jSt.  Marjj-le- 
Bo7V,  in  the  ward  of  Cheap.  It  was  resolved,  by  the  Avliole 
court,  that  the  declaration  was  ill,  l:)ecause  the  trespass  is  sup- 
posed to  be  committed  at  Fort  St.  George,  in  parts  beyond  the 
seas,  videlicet,  in  London;  which  is  repugnant  and  absurd:  and 
it  was  said,  by  the  Chief  Justice,  that  if  a  bond  bore  date  at 
Paris,  in  the  Kingdom  of  France,  it  is  not  triable  here.  In  the 
present  case,  it  does  appear  upon  the  record,  that  the  offence 
complained  of  was  committed  in  parts  beyond  the  seas,  and  the 
defendant  has  concluded  his  plea  with  a  traverse,  that  he  was 
not  guilty  in  London,  in  the  parish  of  St.  Mary-le-Boiv,  or  else- 
where out  of  the  island  of  Minorca.  Besides  it  stands  ad- 
mitted by  the  plaintiff  ;  because  if  he  had  thought  lit  to  have 
denied  it,  he  should  have  made  a  new  assignment,  or  have  taken 
issue  on  the  place.  Therefore,  as  Justice  Dodderidge  says,  in 
Latch,  4,  the  court  must  take  notice,  that  the  cause  of  action 
arose  out  of  their  jurisdiction. 

Before  the  statute  of  Jeofails,  even  in  cases  the  most  transi- 
tory, if  the  cause  of  action  was  laid  in  London,  and  there  was  a 
local  justification,  as  at  Oxford,  the  cause  must  have  been  tried 
at  Oxford,  and  not  in  Loiidon.  But  the  statute  of  Jeofails  does 
not  extend  to  Minorca :  therefore,  this  case  stands  entirely 
upon  the  common  law  ;  by  which  the  trial  is  bad,  and  the  ver- 
dict void. 


MOSTVX    V.    J'ABJllGAS.  921 

The  inconveniences  of  entertaining  such  an  action  in  this 
country  are  many,  but  none  can  attend  the  rejecting  it.  For  it 
must  be  determined  by  the  hiw  of  this  country,  or  by  the  law  of 
the  place  where  the  act  was  done.  If  by  our  law,  it  would  be 
the  highest  injustice,  by  making  a  man  who  has  regulated  his 
conduct  by  one  law,  amenable  to  another  totally  opposite. 
If  by  the  law  of  Minorca^  how  is  it  to  be  proved?  There  is  no 
legal  mode  of  certifying  it,  no  process  to  compel  the  attendance 
of  witnesses,  or  means  to  answer  them.  The  consequence 
would  be  to  encourage  every  disaffected  or  mutinous  soldier 
to  bring  actions  against  his  officer,  and  to  put  him  upon  his  de- 
fence without  the  power  of  proving  either  the  law  or  the  facts 
of  his  case. 

Second  point.  If  an  action  would  lie  against  any  other  per- 
son, yet  it  cannot  be  maintained  against  the  Governor  of  Mi- 
noi'ca,  acting  as  such,  Avithin  the  Arraval  of  St.  PhiUip^s. 

The  Governor  of  Minorca,  at  least  within  the  district  of  St. 
Phillip" s  is  absolute :  both  the  civil  and  criminal  jurisdiction 
vest  in  him  as  the  supreme  power,  and  as  such  he  is  accountable 
to  none  but  God.  But  supposing  he  were  not  absolute :  in  this 
case,  the  act  complained  of  was  done  by  him  in  a  judicial  capac- 
ity as  criminal  judge ;  for  which  no  man  is  answerable.  1 
Salk.  396,  aroenvelt  v.  BurweU  ;  2  Mod.  218,  Show.  Pari.  Cases, 
24,  Pntton  v.  Hoioell.,  are  in  point  to  this  position  ;  but  more 
particularly  the  last  case,  where  in  trespass,  assault,  and  false 
imprisonment,  the  defendant  justified  as  governor  of  Barbadoes, 
under  an  order  from  the  council  of  state  in  Barbadoes.,  made  by 
himself  and  the  council,  against  the  plaintiff  (who  was  the  deputy- 
governor),  for  maladministration  in  his  office ;  and  the  House 
of  Lords  determined,  that  the  action  would  not  lie  here.  All 
the  grounds  and  reasons  urged  in  that  case,  and  all  the  incon- 
veniences pointed  out  against  that  action,  hold  strongly  in  the 
present.  This  is  an  action  brought  against  the  defendant 
for  what  he  did  as  judge ;  all  the  records  and  evidence,  which 
relate  to  the  transaction,  are  in  Minorca.,  and  cannot  be  brought 
liere :  the  laws  there  are  different  from  what  they  are  in  this 
country  ;  and  as  it  is  said  in  the  conclusion  of  that  argument, 
government  must  be  ver}"  weak  indeed,  and  the  persons  en- 
trusted v/ith  it  very  uneasy,  if  they  are  subject  to  be  chaiged 
with  actions  here,  for  what  they  do  in  that  character  in  those 
countries.     Therefore,  unless  that  case  can  be  materiallv  distin- 


922  MOSTVN   V.    FABRIGAS. 

guished  from  the  present,  it  will  l)e  an  authority,  and  the 
highest  authority  that  can  he  adduced,  to  show  that  this  action 
cannot  be  maintained ;  and  that  the  plaintiff  in  error  is  entitled 
to  the  judgment  of  the  court. 

Mr.  Peckham,  for  the  defendant  in  error.  1st,  the  objection 
to  the  jurisdiction  is  now  too  late ;  for  wherever  a  party  has 
once  submitted  to  the  jurisdiction  of  the  court,  he  is  for  ever 
after  precluded  from  making  any  objection  to  it.  Year  Book, 
22  H.  6,  fob  7;  Co.  Litt.  127,  b.;  T.  Raym.  34-  1  Mod.  81;  2 
Mod.  273  ;  2  Lord  Raym.  884 ;  2  Vern.  483. 

Secondly.  An  action  of  trespass  can  be  brought  in  England 
for  any  injury  done  abroad.  It  is  a  transitory  action,  and  may 
be  brought  anywhere.  Co.  Litt.  282;  12  Co.  114;  Co.  Litt. 
261,  b.,  where  Lord  Coke  says,  that  an  obligation  made  beyond 
seas,  at  Bordeaux.,  in  France.,  may  be  sued  here  in  Unr/land,  in 
what  place  the  plaintiff  will.  Captain  Parker  brought  an 
action  of  trespass  and  false  imprisonment  against  Lord  Clive, 
for  injuries  received  in  India.,  and  it  Avas  never  doubted  l)ut 
that  the  action  did  lie.  And  at  this  time  there  is  an  action 
depending  between  Gregory  Cojimaul,  an  Armenian  mer- 
chant, and  Governor  Verelst,  in  which  the  cause  of  action 
arose  in  Bengal.  A  bill  was  filed  by  the  Governor  in  the 
Exchequer  for  an  injunction,  which  was  granted ;  but  on 
appeal  to  the  House  of  Lords,  the  injunction  was  dissolved; 
therefore,  the  Supreme  Court  of  Judicature,  by  dissolving 
the  injunction,  acknowledged  that  an  action  of  trespass  could 
be  maintained  in  England.,  though  the  cause  of  action  arose 
in  India.     ^ 

Thirdly.  There  is  no  disability  in  the  plaintiff  which  inca- 
pacitates him  from  bringing  this  action.  Every  person  born 
within  the  ligeance  of  the  King,  though  without  the  realm,  is 
a  natural-born  subject,  and  as  such,  is  entitled  to  sue  in  the 
King's  courts.  Co.  Litt.  129.  The  plaintiff,  though  born  in  a 
conquered  country,  is  a  subject,  and  within  the  ligeance  of  the 
King:. 2  Burr.  858. 

In  1  Salk.  404,  upon  a  bill  to  foreclose  a  mortgage  in  the 
island  of  Sa^-ke,  the  defendants  pleaded  to  the  jurisdiction,  viz., 
that  the  island  was  governed  by  the  laws  of  Normandy.,  and 
that  the  party  ought  to  sue  in  the  courts  of  the  island,  and 
appeal.  But  Lord  Keeper  Wright  overruled  the  plea ;  "  other- 
wise there  might  be  a  failure  of  justice,  if  the  Chancery  could 


MOSTYN    V.    FABRIGAS.  923 

not  hold  plea  in  such  case,  the  party  being  here."  In  this  case 
both  the  parties  are  upon  the  spot.  In  the  case  of  Mamkissen- 
seat  V.  Barker^  upon  a  bill  filed  against  the  representatives  of 
the  Governor  of  Patna,  for  money  due  to  him  as  his  Banyan ; 
the  defendant  pleaded,  that  the  plaintiff  was  an  alien  born,  and 
an  alien  infidel,  and  therefore  could  have  no  suit  here.  But 
Lord  Ilardivicke  said,  "as  the  plaintiff's  was  a  mere  personal 
demand,  it  was  extremely  clear  that  he  might  bring  a  bill  in 
this  court."  And  he  overruled  the  defendant's  plea  without 
hearing  one  counsel  on  either  side. 

Tlie  case  of  the  Countess  of  Derhjj^  Keilwey,  202,  does  not 
afTect  the  present  question;  for  that  was  a  claim  of  dower; 
which  is  a  local  action,  and  cannot,  as  a  transitory  action,  be 
tried  anywhere.  The  other  cases  from  Latch  and  Lutwyche 
were  either  local  actions,  or  questions  upon  demurrer ;  there- 
fore, not  applicable  to  the  case  before  the  court ;  for  a  party 
may  avail  himself  of  many  things  upon  a  demurrer,  which  he 
cannot  by  a  writ  of  error.  The  true  distinction  is  between 
transitory  and  local  actions ;  the  former  of  which  may  be  tried 
anywhere ;  the  latter  cannot ;  and  this  is  a  transitory  action. 
But  there  is  one  case  which  more  particularly  points  out  the 
distinction,  which  is  the  case  of  Mr.  Skinner,  referred  to  the 
twelve  Judges  from  the  council  board.  In  the  year  1657, 
when  trade  was  open  to  the  East  Indies^  he  possessed  himself 
of  a  house  and  warehouse,  which  he  filled  Avith  goods,  at  Jamhy, 
and  he  i^urchased  of  the  King  at  Great  Jamby  the  islands  of 
Baretha.  The  agents  of  the  East  India  Company  assaulted 
his  person,  seized  his  warehouse,  carried  away  his  goods,  and 
took  and  possessed  themselves  of  the  islands  of  Baretha.  Upon 
this  case  it  was  propounded  to  the  Judges,  by  an  order  from 
the  King  in  council,  dated  the  12th  April,  1G65,  "  Whether 
Mr.  Skinner  could  have  a  full  relief  in  any  ordinary  court 
of  law  ? "  Their  opinion  was,  "  That  his  Majesty's  ordinary 
courts  of  justice  at  West7ninster  can  give  relief  for  taking  away 
and  spoiling  his  ship,  goods,  and  papers,  and  assaulting  and 
wounding  his  person,  notwithstanding  the  same  was  done  be- 
yond the  seas.  But  that  as  to  the  detaining  and  possessing  of 
the  house  and  islands  in  the  case  mentioned,  he  is  not  reliev- 
able  in  an}'  ordinary  court  of  justice."  It  is  manifest  from 
this  case  that  the  twelve  Judges  held,  that  an  action  might  be 
maintained  here  for  spoiling  his  goods,  and  seizing  his  person, 


924  MOSTYN   Vo   PABRIGAS. 

because  an  action  of  trespass  is  a  transitory  action  ;  but  an 
action  could  ]iot  be  maintained  for  possessing-  the  house  and 
land,  because  it  is  a  local  action. 

Fourth  point.  It  is  contended  that  General  Mostyn  governs 
as  all  absolute  sovereigns  do,  and  that  afet  pro  ratione  voluntas 
is  the  only  rule  of  his  conduct.  From  whom  does  the  governor 
derive  this  despotism?  Not  from  the  King,  for  the  King  has 
no  such  power,  and  therefore  cannot  delegate  it  to  another. 
Many  cases  have  been  cited,  and  much  argument  has  been  ad- 
duced, to  prove  that  a  man  is  not  responsible  in  an  action  for 
what  he  has  done  as  a  judge ;  and  the  case  of  Button  v.  Hoivell 
has  been  much  dwelt  upon ;  but  that  case  has  not  the  least 
resemblance  to  the  present.  The  ground  of  that  decision  was, 
that  Sir  John  Dutton  was  acting  with  his  council  in  a  judicial 
capacity,  in  a  matter  of  public  accusation,  and  agreeable  to  the 
laws  of  Barhadoes^  and  only  let  the  law  take  its  course  against 
a  criminal.  But  Governor  Mostyn  neither  sat  as  a  military  nor 
a  civil  judge ;  he  heard  no  accusation,  he  entered  into  no  proof ; 
he  did  not  even  see  the  prisoner ;  but  in  diiect  opposition  to  all 
laws,  and  in  violation  of  the  first  principles  of  justice,  followed 
no  rule  but  liLs  own  arbitrary  will,  and  went  out  of  his  way  to 
prosecute  the  innocent.  If  that  be  so,  he  is  responsible  for  the 
injury  he  has  done  ;  and  so  was  the  opinion  of  the  court  of  C.  B. 
as  delivered  by  Lord  Chief  Justice  Be  G-rey,  on  the  motion  for 
a  new  trial.  If  the  governor  had  secured  him,  said  his  Lordship, 
nay,  if  he  had  barely  committed  him,  that  he  might  have  been 
amenable  to  justice  :  and  if  he  had  immediately  ordered  a  pros- 
ecution upon  any  part  of  his  conduct,  it  would  have  been  an- 
other question ;  but  the  governor  knew  he  could  no  more  im- 
prison him  for  a  twelvemonth  (and  the  banishment  for  a  year  is 
a  continuation  of  the  original  imprisonment),  than  that  he  could 
inflict  the  torture.  Lord  Bellamont' s  Case,  2  Salk.  625,  Pas.  12 
W.  3,  is  a  case  in  point  to  show  that  a  governor  abroad  is  re- 
sponsible here ;  and  the  stat.  12  W.  3,  passed  the  same  year,  for 
making  governors  abroad  amenable  here  in  criminal  cases,  af- 
fords a  strong  inference  that  they  were  already  answerable  for 
civil  injuries,  or  the  legislature  would  at  the  same  time  have  pro- 
vided against  that  mischief.  But  there  is  a  late  decision  not 
distinguishable  from  the  case  in  question :  Comyn  v.  Sahine, 
Governor  of  Gihraltar,  Mich.  11  Geo.  2.  The  declaration 
stated,  that  the  plaintiff  was  a  master  carpenter  of  the  office  of 


MOSTYN    V.    FAHltlGAS.  925 

ordnance  at  Gihralfar ;  that  Governor  Sabine  tried  him  by  a 
court-martial,  to  Avhich  he  was  not  subject ;  that  he  underwent 
a  sentence  of  500  lashes ;  and  that  he  was  compelled  to  depart 
from  Gibraltar^  which  he  laid  to  his  damage  of  10,000?.  The 
defendant  pleaded  not  guilty,  and  justified  under  the  sentence 
of  the  court-martial.  There  was  a  verdict  for  the  plaintiff,  with 
700/.  damages.  A  writ  of  error  was  brought,  but  the  judgment 
affirmed. 

With  respect  to  the  Arraval  of  St.  Phillip's  being  a  peculiar 
district,  under  the  immediate  authority  of  the  governor  alone, 
the  opinion  of  Lord  Chief  Justice  BeGrey.,  upon  the  motion 
for  a  new  trial,  is  a  complete  answer ;  "  One  of  the  witnesses 
in  the  cause,"  said  his  Lordship,  ''  represented  to  the  jur}-,  that 
in  some  particular  cases,  especially  in  criminal  matters,  the 
governor  resident  upon  the  island  does  exercise  a  legislative 
power.  It  was  gross  ignorance  in  that  person  to  imagine  such 
a  thing :  I  may  say  it  was  impossible,  that  a  man  who  lived  upon 
the  island  in  the  station  he  had  done,  should  not  know  better, 
than  to  thinlc  tliat  the  governor  had  a  civil  and  criminal  power 
in  him.  The  governor  is  the  King's  servant ;  his  commission 
is  from  him,  and  he  is  to  execute  the  power  he  is  invested  Avith 
under  that  commission;  which  is  to  execute  the  laws  of  Mi- 
norca., under  such  regulations  as  the  King  shall  make  in  council. 
It  was  a  vain  imagination  in  the  witnesses  to  say,  that  there 
were  five  terminos  in  the  island  of  Minorca  ;  I  have  at  various 
times  seen  a  multitude  of  authentic  documents  and  papers  rela- 
tive to  that  island;  and  I  do  not  believe  that,  in  any  one  of 
them,  the  idea  of  the  Arraval  of  St.  Phillip's  being  a  distinct 
jurisdiction  was  ever  started.  3Iahon  is  one  of  the  four  ter- 
minos, and  St.  Phillip's,  and  all  the  district  about  it,  is  com- 
prehended within  that  termino  ;  but  to  supjDOse  that  there  is 
a  distinct  jurisdiction,  separate  from  tlie  government  of  the 
island,  is  ridiculous  and  absurd."  Therefore,  as  the  defendant, 
by  pleading  in  chief,  and  submitting  his  cause  to  the  decision 
of  an  English  jury,  is  too  late  in  his  ol)jection  to  the  jurisdic- 
tion of  the  court ;  as  no  disability  incapacitates  the  plaintiff 
from  seeking  redress  here  ;  and  as  the  action  wliich  is  a  transi- 
tory one  is  clearly  maintainable  in  this  country,  though  the 
cause  of  action  arose  abroad,  the  judgment  ought  to  be  affirmed. 
Should  it  be  reversed,  I  fear  the  public,  with  too  much  truth, 
will  apply  the  lines  of  the    Roman   satirist,  on    the    drunken 


926  MOSTYN    V.    FABKIGAS. 

Maiius,  to  the  present  occasion  :  and  they  will  say  of  Governor 
Mostyn,  as  was  formerly  said  of  him, 

Hie  est  damnatus  inani  judiclo  ; 

and  to  the  Minorquins,  if  Mr.  Fabrigas  should  ])e  deprived  of 
that  satisfaction  in  damages,  which  the  jury  gave  liim. 

At  tu  victrix  provincia  ploras. 

Lord  Mansfield.  —  Let  it  stand   for   another   argument.     It 
has  been  extremely  well  argued  on  both  sides. 


On  Friday,  27th  of  January,  1775,  it  was  very  ablj'  argued 
by  Mr.  Serjeant  Glynn  for  the  plaintiff,  and  by  Mr.  Serjeant 
Walker  for  the  defendant. 

Lord  Mansfield.  —  This  is  an  action  brought  by  the  plaintiff 
against  the  defendant,  for  an  assault  and  false  imprisonment ; 
and  part  of  the  complaint  made  being  for  banishing  him  from 
the  island  of  Minorca  to  Carthagena  in  Spain,  it  was  necessary 
for  the  plaintiff,  in  his  declaration,  to  take  notice  of  the  real 
place  where  the  cause  of  action  arose :  therefore,  he  has  stated 
it  to  be  in  Minorca ;  with  a  videlicet  at  London,  in  the  parish 
of  St.  Mar i/-le- Boil',  in  the  ward  of  Cheap.  Had  it  not  been 
for  that  particular  requisite,  he  might  have  stated  it  to  have 
been  in  the  county  of  Middlesex.  To  this  declaration  the 
defendant  put  in  two  pleas.  First,  "  not  guilty  " ;  secondly, 
that  he  was  Governor  of  3Iinorca,  b}'  letters  patent  from  the 
croAvn ;  that  the  plaintiff  was  raising  a  sedition  and  mutin}^ ; 
and  that,  in  consequence  of  such  sedition  and  mutiny,  he  did 
imprison  him  and  send  him  out  of  the  island ;  which,  as  gov- 
ernor, being  invested  with  all  the  privileges,  rights,  &c.,  of 
governor,  ho  alleges  he  had  a  right  to  do.  To  this  plea  the 
plaintiff  does  not  demur,  nor  does  he  deny  that  it  would  be  a 
justification  in  case  it  were  true  :  but  he  denies  the  truth  of  the 
fact:  and  puts  in  issue  whether  the  fact  of  the  plea  is  true. 
The  plea  avers  that  the  assault  for  which  the  action  was 
brought  arose  in  the  island  of  Minorca,  out  of  the  realm  of 
England,  and  nowhere  else.  To  this  the  plaintiff  has  made  no 
new  assignment,  and  therefore  by  his  replication  he  admits  the 
locality  of  the  cause  of  action. 

Thus  it  stood  on  the  pleadings.  At  the  trial  the  plaintiff 
went  into  the  evidence  of  his  case,  and  the  defendant  into  evi- 


MOSTYN    V.    FABKIGAS.  927 

dence  of  his ;  but  on  behalf  of  the  defendant,  evidence  differ- 
ent from  the  facts  alleged  in  his  plea  of  justification  was  given, 
to  show  that  the  Arraval  of  St.  Phillip' h^  where  the  injury  com- 
plained of  was  done,  was  not  within  either  of  the  four  pre- 
cincts, but  is  a  district  of  itself,  more  immediately  under  the 
2:iower  of  the  governor ;  and  that  no  judge  of  the  island  can 
exercise  jurisdiction  there,  without  a  special  appointment  from 
him.  Upon  the  facts  of  the  case,  the  judge  left  it  to  the  jury, 
who  found  a  verdict  for  the  plaintiff,  with  3000?.  damages. 
The  defendant  has  tendered  a  bill  of  exceptions,  upon  which 
bill  of  exceptions  the  cause  comes  before  us :  and  the  great 
dillicidty  I  have  had  upon  both  the  arguments,  has  been  to 
be  able  clearly  to  comprehend  what  the  question  is,  which  is 
meant  seriously  to  be  brought  before  the  court. 

If  1  understand  the  counsel  for  Governor  Mostyn  right,  what 
they  say  is  this :  The  plea  of  not  guilty  is  totally  immaterial ; 
and  so  is  the  plea  of  justification :  because  upon  the  plaintiff's 
own  showing  it  appears,  1st,  that  the  cause  of  action  arose  in 
■Minorca^  out  of  the  realm  ;  2ndly,  that  the  defendant  was  Gov- 
ernor of  3Ii7iorca,  and  by  virtue  of  such  his  authority  impris- 
oned the  plaintiff.  From  thence  it  is  argued  that  the  judge 
who  tried  the  cause  ought  to  have  refused  any  evidence  what- 
soever, and  have  directed  the  jury  to  find  for  the  defendant: 
and  three  reasons  have  been  assigned.  One,  insisted  upon  in 
the  former  argument,  Avas  that  the  plaintiff,  being  a  3Iinorqnin^ 
is  incapacitated  from  bringing  an  action  in  the  King's  courts  in 
England.  To  dispose  of  that  objection  at  once,  I  shall  only 
say,  it  is  wisely  abandoned  to-day ;  for  it  is  impossible  there 
ever  could  exist  a  doubt,  but  that  a  subject  born  in  Minorca 
has  as  good  a  right  to  appeal  to  the  King's  courts  of  justice  as 
one  who  is  born  within  the  sound  of  Bow  bell ;  and  the  objec- 
tion made  in  this  case,  of  its  not  being  stated  on  the  record 
that  the  plaintiff  was  born  since  the  treaty  of  Utrecht.,  makes 
no  difference.  The  two  other  grounds  are,  1st,  That  the  de- 
fendant being  Governor  of  Minorca.,  is  answerable  for  no  injury 
whatsoever  done  by  him  in  that  capacity :  2ndly,  That  the 
injury  being  done  at  Minorca,  out  of  the  realm,  is  not  cogni- 
sable by  the  King's  courts  in  Enfiland.  —  As  to  the  first,  nothing 
is  so  clear  as  that  to  an  action  of  this  kind,  the  defendant,  if 
he  has  any  justification,  must  plead  it :  and  there  is  nothing 
more  clear,  than  that  if  the  court  has  not  a  general  jurisdiction  of 


928  MOSTYN   V.    FA15U1GAS. 

the  subject-matter,  he  must  plead  to  the  jurisdiction,  and  can- 
not take  advantage  of  it  upon  the  general  issue.  Therefore, 
by  the  law  of  England,  if  an  action  be  brought  against  a  judge 
of  record  for  an  act  done  by  him  in  his  judicial  capacity,  he 
may  plead  that  he  did  it  as  judge  of  record,  and  that  Avill  be  a 
complete  justification.  So  in  this  case,  if  the  injury  complained 
of  had  been  done  by  the  defendant  as  a  judge,  though  it  arose 
in  a  foreign  country,  where  the  technical  distinction  of  a  court 
of  record  does  not  exist,  yet  sitting  as  a  judge  in  a  court  of 
justice,  subject  to  a  superior  review,  he  would  be  witliin  the 
reason  of  the  rule  which  the  law  of  England  says  shall  be  a 
justification;  but  then  it  must  be  pleaded  (a).  Here  no  such 
matter  is  pleaded,  nor  is  it  even  in  evidence  that  he  sat  as  judge 
of  a  court  of  justice.  Therefore  I  la}^  out  of  the  case  every- 
thing relative  to  the  Arraval  oi  St.  Phillip'' s. 

The  first  point,  then,  upon  this  ground  is,  the  sacredness  of 
the  defendant's  person  as  governor.  If  it  were  true  that  the 
law  makes  him  that  sacred  character,  he  must  plead  it,  and  set 
forth  his  commission  as  special  matter  of  justification ;  because 
primd  facie  the  court  has  jurisdiction.  But  I  will  not  rest  the 
answer  upon  that  only.  It  has  been  insisted  by  way  of  dis- 
tinction, that,  supposing  an  action  will  lie  for  an  injury  of  this 
kind  committed  by  one  individual  against  another,  in  a  country 
beyond  the  seas,  but  within  the  dominion  of  the  crown  of  Eng- 
land, yet  it  shall  not  emphatically  lie  against  the  governor.  In 
answer  to  which  I  say,  that  for  many  reasons,  if  it  did  not  lie 
against  any  other  man,  it  shall  most  emphatically  lie  against  the 
governor. 

In  every  plea  to  the  jurisdiction,  3-ou  must  state  another 
jurisdiction ;  therefore,  if  an  action  is  brought  here  for  a  matter 
arising  in  Wales,  to  bar  the  remedy  sought  in  this  court,  you  must 
show  the  jurisdiction  of  the  court  of  Wales  ;  and  in  every  case 
to  repel  the  jurisdiction  of  the  King's  court,  you  must  show  a 
more  proper  and  more  sufficient  jurisdiction :  for  if  there  is  no 
other  mode  of  trial,  that  alone  will  give  the  King's  courts  a 
jurisdiction.  Now,  in  this  case  no  other  jurisdiction  is  shown, 
even  so  much  as  in  argument.  And  if  the  King's  courts  of 
justice  cannot  hold  plea  in  such  case,  no  other  court  can  do  it. 

(«)  See  Salk.  30G;  Vaugh.  138;  12  513,  514,  535,  550,  784;  4  Taunt.  07; 
C.  24  ;  Lord  Raym.  4(56  ;  G  T.  R.  449  ;  2  C.  &  P.  14G  ;  1  B.  &  C.  1G3  ;  4  B.  & 
3  M.  &  S.  411.     See  too  1  T.  R.  493,       C.  292. 


MOSTYN    V.    FABKIGAS.  929 

For  it  is  truly  said  that  a  governor  is  in  the  nature  of  a  vice- 
roy ;  and  therefore  locally,  during  his  government,  no  civil  or 
criminal  action  will  lie  against  him:  the  reason  is,  because  upon 
process  he  would  be  subject  to  imprisonment  (a).  But  here 
the  injury  is  said  to  have  happened  in  the  Arraval  of  St.  Phil- 
lip's, where,  without  his  leave,  no  jurisdiction  can  exist.  If 
that  be  so,  there  can  be  no  remedy  whatsoever,  if  it  is  not  in 
the  King's  courts :  because,  when  he  is  out  of  the  government, 
and  is  returned  with  his  property  into  this  country,  there  are 
not  even  his  effects  left  in  the  island  to  be  attached. 

Another  very  strong  reason,  which  was  alluded  to  by  Mr. 
Serjeant  Gli/nn,  would  alone  be  decisive ;  and  it  is  this :  that 
though  the  charge  brought  against  him  is  for  a  civil  injury,  yet 
it  is  likewise  of  a  criminal  nature ;  because  it  is  in  abuse  of  the 
authority  delegated  to  him  by  the  King's  letters  patent,  under 
the  great  seal.  Now,  if  everything  committed  within  a  domin- 
ion is  triable  by  the  courts  within  that  dominion,  yet  the  effect 
or  tlie  extent  of  the  King's  letters  patent,  which  gave  the  au- 
thority, can  only  be  tried  in  the  King's  courts ;  for  no  question 
concerning  tlie  seignory  can  be  tried  within  the  seignory  itself. 
Therefore,  where  a  question  respecting  the  seignory  arises  in 
the  proi)rietary  governments,  or  between  two  provinces  of 
America,  or  in  the  Isle  of  Man,  it  is  cognisal)le  by  the  King's 
courts  in  England  only.  In  the  case  of  the  Isle  of  Man,  it  was 
so  decided  in  the  time  of  Queen  Elizabeth,  by  the  chief  justice 
and  many  of  the  judges.  So  that  emphatically  the  governor 
.must  be  tried  in  England,  to  see  whether  he  has  exercised  the 
authority  delegated  to  him  by  the  letters  patent,  legall}''  and 
properly ;  or  whether  he  has  abused  it,  in  violation  of  the  laws 
of  England,  and  the  trust  so  reposed  in  him. 

It  does  not  follow  from  hence,  that,  let  the  cause  of  action 
arise  where  it  may,  a  man  is  not  entitled  to  make  use  of  every 
justification  his  case  will  admit  of,  which  ought  to  be  a  defence 
to  him.  If  he  has  acted  right  according  to  the  authority  with 
which  he  is  invested,  he  must  lay  it  before  the  court  by  way  of 
plea,  and  the  court  will  exercise  their  judgment  whether  it  is  a 
sullicient  justification  or  not.  In  this  case,  if  the  justification 
had  been  proved,  the  court  might  have  considered  it  as  a  suiR- 
cient  answer :  and  if  the  nature  of  the  case  would  have  allowed 

(a)  But  see,  as  to  tliis  position,  tlie  note,  past,  pp.  (!83,  (j84. 


930  MOSTYN   V.    FAliRIGAS. 

of  it,  might  have  adjudged,  that  the  raising  a  mutiny  was  a 
good  ground  for  such  a  summary  proceeding.  I  can  conceive 
cases  in  time  of  war  in  which  a  governor  would  be  justified, 
though  he  acted  very  arbitrarily,  in  which  he  could  not  be  jus- 
tified in  time  of  peace.  Suppose,  during  a  siege  or  upon  an  in- 
vasion of  Minorca^  the  governor  should  judge  it  proper  to  send 
a  hundred  of  the  inhabitants  out  of  the  island,  from  motives  of 
real  and  general  expediency;  or  suppose,  upon  a  general  sus- 
picion, he  should  take  people  up  as  spies ;  upon  proper  circum- 
stances laid  before  the  court,  it  would  be  very  fit  to  see  whether 
he  had  acted  as  the  governor  of  a  garrison  ought,  according  to 
the  circumstances  of  the  case.  But  it  is  objected,  supposing 
the  defendant  to  have  acted  as  the  Spanish  governor  was  em- 
powered to  do  before,  how  is  it  to  be  known  here  that  by  the 
laws  and  constitution  of  Spain  he  was  authorised  so  to  act? 
The  way  of  knowing  foreign  laws  is,  by  admitting  them  to  be 
proved  as  facts,  and  the  court  must  assist  the  jury  in  ascertain- 
ing what  the  law  is.  For  instance,  if  there  is  a  French  settle- 
ment, the  construction  of  which  depends  upon  the  custom  of 
Paris,  witnesses  must  be  received  to  explain  what  the  custom 
is ;  as  evidence  is  received  of  customs  in  respect  of  trade. 
There  is  a  case  of  the  kind  I  have  just  stated.  So  in  the  su- 
preme resort  before  the  King  in  council,  the  privy  council  de- 
termines all  cases  that  arise  in  the  plantations,  in  Gibraltar  or 
Minorca,  in  Jersey  or  Guernsey ;  and  they  inform  themselves, 
by  having  the  law  stated  to  them.  —  As  to  suggestions  with 
regard  to  the  difficulty  of  bringing  witnesses,  the  court  must 
take  care  that  the  defendant  is  not  surprised,  and  that  he  has  a 
fair  opportunity  of  bringing  his  evidence,  if  it  is  a  case  proper 
in  other  respects  for  the  jurisdiction  of  the  court.  There  may 
be  some  cases  arising  abroad,  which  may  not  be  fit  to  be  tried 
here ;  but  that  cannot  be  the  case  of  a  governor  injuring  a  man 
contrary  to  the  duty  of  his  office,  and  in  violation  of  the  trust 
reposed  in  him  by  the  King's  commission. 

If  he  wants  the  testimony  of  witnesses  whom  he  cannot  com- 
pel to  attend,  the  court  may  do  what  this  court  did  in  the  case 
of  a  criminal  prosecution  of  a  woman  who  had  received  a 
pension  as  an  officer's  widow :  and  it  was  charged  in  the  in- 
dictment, that  she  never  was  married  to  him.  She  alleged  a 
marriage  in  Scotland,  but  that  she  could  not  compel  her  Avit- 
ness  to  come   up  to  give   evidence.      The   court  obliged   the 


MOSTYN    V.    FABRIGAS.  931 

prosecutor  to  consent  that  the  witnesses  might  be  examined 
before  any  of  the  judges  of  the  court  of  session,  or  any  of  the 
barons  of  the  court  of  exchequer  in  Scotland,  and  that  the 
depositions  so  taken  shouhl  be  read  at  the  triaL  And  they 
dechired  that  they  wouhl  have  put  off  the  trial  of  the  indict- 
ment from  time  to  time  for  ever,  unless  the  prosecutor  had  so 
consented.  The  witnesses  were  so  examined  before  the  lord 
president  of  the  court  of  session. 

It  is  a  matter  of  course  in  aid  of  a  trial  at  law  to  apply  to  a 
court  of  equity  for  a  commission  and  injunction  in  the  mean- 
time :  and  where  a  real  ground  is  laid,  the  court  will  take  care 
that  justice  is  done  to  the  defendant  as  well  as  to  the  plain- 
tiff (a).  Therefore,  in  every  light  in  which  I  see  the  subject, 
I  am  of  opinion  that  the  action  holds  emphatically  against  the 
governor,  if  it  did  not  hold  in  the  case  of  any  other  person.  If 
so,  he  is  accountable  in  this  court  or  he  is  accountable  nowhere, 
for  the  King  in  council  has  no  jurisdiction.  Complaints  made 
to  the  King  in  council  tend  to  remove  the  governor,  or  to  take 
from  him  any  commission  which  he  holds  during  the  pleasure 
of  the  croAvn.  But  if  he  is  in  England,  and  holds  nothing  at 
the  pleasure  of  the  crown,  they  have  no  jurisdiction  to  make 
reparation,  by  giving  damages,  or  to  punish  him  in  any  shape 
for  the  injury  committed.  Tlierefore  to  lay  down  in  an  Eng- 
lish court  of  justice  such  a  monstrous  proposition,  as  that  a 
governor  acting  by  virtue  of  letters  patent  under  the  great  seal 
is  accountable  only  to  God  and  his  own  conscience  ;  that  he  is 
absolutely  despotic,  and  can  spoil,  plunder,  and  affect  his 
majesty's  subjects,  both  in  their  liberty  and  property  with  im- 
punity, is  a  doctrine  that  cannot  be  maintained. 

In  Lord  Bellamont's  case,  2  Salk.  625,  cited  by  Mr.  Peckham, 
a  motion  was  made  for  a  trial  at  bar,  and  granted  because  the 
Attorney-General  was  to  defend  it  on  the  part  of  the  King ; 
which  shows  plainly  that  such  an  action  existed.  And  in  Way 
V.  Yallg,  6  Mod.  195,  Justice  Poivell  says,  that  an  action  of 

(rt)  And  now,  by  st.  1  W.  4,  c.  22,  Dowl.  35;  Bain  v.  De  Vetrie,  3  Dowl. 

courts  of  common  law  can  order  the  517;  Bridges  v.  Fisher,  1  Bing.  N.  C. 

examination  of  witnesses  to  be  taken  512  ;  Prince  v.  Samo,  4  Dowl.  5  ;  Bour- 

in  writing  whether  they  reside  in  a  deaux  v.  Rowe,  I  B'ms^.'iii.C.  721;  Du- 

foreign  country,  a  colony,  or  in  Eng-  kett  v.  Williams,  1  Tyrwh.  502;  Wain- 

land,  but  under  circumstances  which  v:ri(jht  v.  Bland,  3  Dowl.  G53.     [And 

disable  them  from  attending  to  give  see  now,  since  the  Judicature  Act, 

evidence.      See   Doe   v.   Pattison,   3  O.  37,  r.  5  ct  seq.'\ 


932  MOSTYX   V.    FATilllGAS. 

false  imprisonment  has  been  brought  here  against  a  governor  of 
Jamaica,  for  an  imprisonment  there,  and  the  hxws  of  the  country 
were  given  in  evidence.  The  governor  of  Jamaica  in  that  case 
never  thought  that  he  was  not  amenable,  lie  defended  him- 
self, and  possibly  sliowed,  by  the  laws  of  the  country,  an  Act  of 
the  Assembly  which  justified  that  imprisonment,  and  the  Court 
received  it  as  they  ought  to  do.  For  whatever  is  a  justification 
in  the  place  where  the  thing  is  done,  ouglit  to  be  a  justification 
where  the  case  is  tried.  —  I  remember,  early  in  my  time,  being 
counsel  in  an  action  brought  by  a  carpenter  in  the  train  of 
artillery  against  Governor  Sabine,  who  was  governor  of  Gibral- 
tar, and  who  had  barely  confirmed  the  sentence  of  a  court- 
martial,  by  which  the  plaintiff  had  been  tried,  and  sentenced  to 
be  whipped.  The  governor  was  very  ably  defended,  but  nobody 
ever  thought  that  the  action  would  not  lie  ;  and  it  being  proved 
at  the  trial,  that  the  tradesmen  who  follow  the  train  are  not 
liable  to  martial  law,  the  court  Avere  of  that  opinion,  and  the 
jury  accordingly  found  the  defendant  guilty  of  the  trespass,  as 
having  had  a  share  in  the  sentence ;  and  gave  500Z.  damages. 

The  next  objection  Avhich  has  been  made  is  a  general  objec- 
tion, with  regard  to  the  matter  arising  abroad ;  namely,  that  as 
the  cause  of  action  arose  abroad,  it  cannot  be  tried  here  in  Eng- 
layid. 

There  is  a  formal  and  a  substantial  distinction  as  to  the 
locality  of  trials.  I  state  them  as  different  things :  the  sub- 
stantial distinction  is,  where  the  proceeding  is  in  rem,  and  where 
the  effect  of  the  judgment  cannot  be  had,  if  it  is  laid  in  a  wrong 
place.  That  is  the  case  of  all  ejectments  where  possession  is  to 
be  delivered  by  the  sheriff  of  the  county ;  and  as  trials  in  Eng- 
land are  in  particular  counties,  the  officers  are  county  officers ; 
therefore  the  judgment  could  not  have  effect,  if  the  action  was 
not  laid  in  the  proper  county. 

With  regard  to  matters  that  arise  out  of  the  realm,  there  is  a 
substantial  distinction  of  locality  too ;  for  there  are  some  cases 
that  arise  out  of  the  realm  which  ouglit  not  to  be  tried  any- 
where but  in  the  country  where  they  arise ;  as  in  the  case 
alluded  to  by  Serjeant  WaUcer :  if  two  persons  fight  in  France, 
and  both  happening  casually  to  be  here,  one  should  bring  an 
action  of  assault  against  the  other,  it  might  be  a  doubt  whether 
such  an  action  could  be  maintained  here ;  because,  though  it  is 
not  a  criminal  prosecution,  it  must  be  laid  to  be  against  the 


MOSTYN    V.    FABRIGAS.  933 

peace  of  the  king  (f?)  ;  but  the  breach  of  the  peace  is  merely 
local,  though  the  trespass  against  the  person  is  transitory. 
Therefore,  without  giving  any  opinion,  it  might  perhaps  be 
triable  only  where  both  parties  at  the  time  were  subjects.  So  if 
an  action  were  brought  relative  to  an  estate  in  a  foreign  coun- 
try, where  the  question  was  a  matter  of  title  only  and  not  of 
(lanuiges,  there  might  be  a  solid  distinction  of  locality. 

But  there  is  likewise  a  formal  distinction,  wliich  arises  from 
tlic  mode  of  trial:  for  trials  in  England  being  by  jury,  and  the 
kingdom  being  divided  into  counties,  and  each  county  con- 
sidered as  a  separate  district  or  principality,  it  is  absolutely 
necessary  that  there  should  be  some  county  where  the  action  is 
brought  in  particvdar,  tliat  there  may  be  a  process  to  the  sheriif 
of  that  county,  to  bring  a  jury  from  thence  to  try  it.  This 
matter  of  form  goes  to  all  cases  that  arise  abroad:  but  the 
law  makes  a  distinction  between  transitory  actions  and  local 
actions.  If  the  matter  which  is  the  cause  of  a  transitory 
action  arises  Avithin  the  realm,  it  may  l)e  laid  in  any  county  — 
the  place  is  not  material ;  and  if  an  imprisonment  in  Middlesex^ 
it  may  be  laid  in  Surrey^  and  though  proved  to  be  done  in 
Middlesex^  the  place  not  being  material,  it  does  not  at  all  pre- 
vent the  plaintiff  recovering  damages :  the  place  of  transitory 
actions  is  never  material,  except  where  by  particular  Acts  of 
Pai'liament  it  is  made  so ;  as  in  the  case  of  churchwardens 
and  constables,  and  other  cases  which  require  the  action  to  be 
brought  in  the  county.  The  parties,  upon  sufficient  ground, 
have  an  opportunity  of  applying  to  the  court  in  time  to  change 
the  venue ;  but  if  they  go  to  trial  without  it,  that  is  no  objec- 
tion. So  all  actions  of  a  transitory  nature  that  arise  abroad 
may  be  laid  as  happening  in  an  EnyJiHli  county.  But  there  are 
occasions  wliich  make  it  absolutely  necessary  to  state  in  the 
declaration,  that  the  cause  of  action  really  happened  abroad ; 
as  in  the  case  of  specialties,  where  the  date  must  be  set  forth. 
If  tlie  declaration  states  a  specialty  to  have  been  made  at  West- 

(rt)  It  seems  that,  the  words  contra  the   vi  et  armif!,   that   may   now   be 

|)ffwj/i  were  not  necessary  in  a  dechira-  omitted,  yet  qinvre  whether  they  can 

tion  of  trespass  even  before  the  Com-  be  held  to  stand  on  a  ditl'erent  foot- 

mon  Law  Procednre  Amendment  Act,  inij,  see  Com.  di.  Pleader,  3  M.  8,  and 

18.5-',  for  the  tine  to  the  kinii  had  been  whether  the  doul)t  expressed  by  Lord 

abolished,  and  thoiij^h  in  Day  v.Mitx-  Ma)isiit'hl  be  well  fonuded.  see  post, 

kctt,  L.  Kaym.  !)85,   Lord   IIdU   said  in  nutis. 
that  it  was  not  the  contra  paccm,  but 


934  MOSTYX    V.    FABIIIGAS. 

minster  in  Middlesex,  and  upon  producing  the  deed,  it  bears 
date  at  Bengal,  the  action  is  gone ;  because  it  is  such  a  vari- 
ance between  the  deed  and  the  declaration  as  makes  it  appear 
to  be  a  different  instrument.  There  is  some  confusion  in  the 
books  upon  tiie  stat.  6  Rich.  2.  But  I  do  not  put  the  objection 
upon  that  statute.  I  rest  it  singly  upon  this  ground:  if  the 
true  date  or  description  of  the  bond  is  not  stated,  it  is  at  vari- 
ance. But  the  law  has  in  that  case  invented  a  fiction ;  and  has 
said  the  party  shall  first  set  out  the  description  trid}-,  and  then 
give  a  venue  only  for  form,  and  for  the  sake  of  trial  by  a 
videlicet,  in  the  county  of  3Iiddlesex,  or  any  other  county.  But 
no  judge  ever  thought  that  Avhen  the  declaration  said  in  Fort 
St.  G-eorge,  viz.,  in  Cheapside,  that  the  plaintiff  meant  it  was  in 
Cheapside.  It  is  a  fiction  of  form  ;  every  country  has  its  forms, 
which  are  invented  for  the  furtherance  of  justice ;  and  it  is  a 
certain  rule,  that  a  fiction  of  laio  shall  never  he  contradicted  so  as 
to  defeat  the  end  for  which  it  was  invented,  hut  for  every  other  pur- 
pose it  may  he  contradicted  (a).  Now  the  fiction  invented  in 
these  cases  is  barely  for  the  mode  of  trial ;  to  every  other  pur- 
pose, therefore,  it  shall  be  contradicted,  but  not  for  the  purpose 
of  saying  the  case  shall  not  be  tried.  So  in  the  case  that  was 
long  agitated  and  finally  determined  some  years  ago,  u]i)()n  a 
fiction  of  the  teste  of  writs  taken  out  in  the  vacation,  which 
bear  date  as  of  the  last  day  of  the  term,  it  was  held,  that  the 
fiction  shall  not  be  contradicted  so  as  to  invalidate  the  writ,  by 
averring  that  it  issued  on  a  day  in  the  vacation :  because  the 
fiction  was  invented  for  the  furtherance  of  justice  and  to  make 
the  writ  appear  right  in  form.  But  where  the  true  time  of 
suing  out  a  latitat  is  material,  as  on  a  plea  of  7ion  assumpsit 
infra  sex  annos,  there  it  may  be  shown  that  the  latitat  was  sued 
out  after  the  six  j'-ears,  notwithstanding  the  teste.  I  am  sorry 
to  observe,  that  some  sayings  have  been  alluded  to,  inaccurately 
taken  down,  and  improperly  printed,  where  the  court  has  been 
made  to  say,  that  as  men  they  have  one  way  of  thinking,  and 
as  judges  they  have  another,  which  is  an  absurdity ;  whereas  in 
fact  they  only  meant  to  support  the  fiction.  I  will  mention  a 
case  or  two  to  show  that  this  is  the  meaning-  of  it. 

In  6  Mod.  228,  the  case  of  Roberts  v.  Harnage  is  thus  stated : 
The  plaintiff  declared  that  the  defendant  became  bound  to  him 

(a)  Cited  by  Bramwell,  B.,  A.-Cr.  v.  Kent,  31  L.  J.  396;  Holmes  v.  lieg.  31  L. 
J.  Cha.  58. 


MOSTVN    V.    FAIUIIGAS.  935 

at  Fort  St.  DavicVs  in  the  East  Indies  at  London.,  in  such  bond ; 
upon  demurrer  the  objection  was  that  the  bond  appeared  to 
have  been  sealed  and  delivered  at  Fort  St.  David's  in  the  JSast 
Indies,  and  therefore  the  date  made  it  local,  and,  by  conse- 
quence, the  declaration  ought  to  have  been  of  a  bond  made  at 
Fort  St.  David^s  in  the  Fast  Indies,  viz.,  at  Islington  in  the 
county  of  Middlesex ;  or  in  such  a  ward  or  parish  in  London : 
and  of  that  opinion  was  the  whole  court.  This  is  an  inaccu- 
rate statement  of  the  case.  But  in  2  Lord  Raym.  1042,  it  is 
more  truly  reported,  and  stated  as  follows  :  it  appeared  by  the 
declaration  that  the  bond  was  made  at  London  in  the  ward  of 
Cheap ;  upon  oyer,  the  bond  was  set  out,  and  it  appeared  upon 
the  face  of  it  to  be  dated  at  Fort  St.  G-eorge  in  the  East  Indies  ; 
the  defendant  pleaded  the  variance  in  abatement,  and  the  plain- 
tiff demurred,  and  it  was  held  bad :  but  the  court  said  that  it 
would  have  been  good  if  laid  at  Fort  St.  G-eorge  in  the  East 
Indies,  to  irit,  at  London,  in  the  ward  of  Cheap.  The  objection 
there  was,  that  they  had  laid  it  falsely  ;  for  they  had  laid  the 
bond  as  iiuide  at  London ;  whei'eas,  when  the  bond  was  pro- 
duced, it  appeared  to  be  made  at  another  place,  which  was  a  vari- 
ance. A  case  was  quoted  from  Latch,  and  a  case  from  Lutwyche, 
on  the  former  argument,  but  I  will  mention  a  case  posterior 
in  point  of  time,  where  both  those  cases  were  cited,  and  no 
regard  at  all  paid  to  them ;  and  that  is  the  case  of  Parker  v. 
Crook,  10  Mod.  255.  It  was  an  action  of  covenant  upon  a  deed 
indented ;  it  was  objected  to  the  declaration,  that  the  defendant 
is  said  in  the  declaration  to  continue  at  Fort  St.  G-eorge,  in  the 
East  Indies :  and  upon  the  oyer  of  the  deed  it  bore  date  at  Fort 
St.  George,  and  therefore  the  court,  as  was  pretended,  had  no 
jurisdiction :  Latch,  fol.  4,  Lutwyche,  950.  Lord  Chief  Justice 
Parker  said,  that  an  action  will  lie  in  England  upon  a  deed 
dated  in  foreign  parts  ;  or  else  the  party  can  have  no  remedy ; 
but  then  in  the  declaration  a  place  in  England,  must  be  alleged 
p>ro  formd.  Generally  speaking,  the  deed  upon  the  oyer  of  it, 
must  be  consistent  witli  the  declaration  :  but  in  these  cases, 
propter  necessitatem,  if  the  inconsistency  be  as  little  as  possible, 
it  is  not  to  be  regarded;  and  here  the  contract  being  of  a  voy- 
age which  was  to  be  perfbrmed  from  Fort  St.  George  to  Great 
Britain,  does  import  that  Fort  St.  George  is  different  from 
Great  Britain;  and  after  taking  time  to  consider  of  it  in  Hilary 
term,  the  plaintiff  had  his  judgment,  notwithstanding  the  ob- 


93<)  MOSTYN    v.    KAliUIGAS. 

jection.  Therefore,  the  whole  amounts  to  this :  that  where  the 
action  is  substantially  sucli  a  one  as  the  court  can  hold  plea  of, 
as  the  mode  of  trial  is  by  jury,  and  as  the  jury  nuist  be  called 
together  by  process  directed  to  the  sheriff  of  the  county,  matter 
of  form  is  added  to  tlie  fiction,  to  say  it  is  in  that  county,  and 
then  tlie  whole  of  the  inquiry  is,  whether  it  is  an  action  that 
oujTfht  to  be  maintained.  But  can  it  be  doubted,  tliat  actions 
may  be  maintained  here,  not  only  upon  contracts  which  follow 
the  persons,  but  for  injuries  done  by  subject  to  subject ;  espe- 
cially for  injuiics,  where  the  whole  that  is  prayed  is  a  re[)ara- 
tion  in  damages,  or  satisfaction  to  be  made  by  process  against 
the  person  or  his  effects,  within  the  jurisdiction  of  the  court? 
We  know  it  is  within  every  day's  experience.  I  was  embarrassed 
a  great  while  to  find  out  whether  the  counsel  for  the  plaintiff 
really  meant  to  make  a  question  of  it.  In  sea  batteries  the 
plaintiff  often  lays  the  injury  to  have  been  done  in  Middlenex^ 
and  then  proves  it  to  be  done  a  thousand  leagues  distant  on 
the  other  side  of  the  Atlantic.  There  are  cases  of  offences  on 
the  high  seas  where  it  is  of  necessity  to  lay  in  the  di'idaration 
that  it  was  done  upon  the  high  seas;  as  the  takiiig  a  sliip. 
There  is  a  case  of  that  sort  occurs  to  my  memory ;  the  reason 
I  remember  it  is,  because  there  was  a  question  about  tlie  juris- 
diction. There  likewise  was  an  action  of  that  kind  before 
Lord  Chief  Justice  Lee,  and  another  before  me,  in  which  I 
quoted  that  determination,  to  show  that  when  the  lords  com- 
missioners of  prizes  have  given  judgment,  that  is  conclusive 
in  the  action ;  and  likewise  when  they  have  given  judgment,  it 
is  conclusive  as  to  the  costs,  whether  they  have  given  costs  or 
not.  It  is  necessary  in  such  actions  to  state  in  the  declaration 
that  the  ship  was  taken,  or  seized  on  the  high  seas,  videlicet,  in 
Cheapside.  But  it  cannot  be  seriously  contended  that  the 
judge  and  jury  who  try  the  cause  fancy  the  ship  is  sailing  in 
Cheapside ;  no,  the  plain  sense  of  it  is  that,  as  an  action  lies  in 
England  for  the  ship  which  was  taken  on  the  high  seas,  Cheapside 
is  named  as  a  venue  :  which  is  saying  no  more  than  that  the  party 
prays  the  action  may  be  tried  in  Londo7i.  But  if  a  party  were  at 
liberty  to  offer  reasons  of  fact  contrary  to  the  truth  of  the  case, 
there  would  be  no  end  of  the  embarrassment.  At  the  last  sit- 
tings there  were  two  actions  brought  by  Armenian  merchants, 
for  assaults  and  trespasses  in  the  East  Indies,  and  they  are 
very  strong  authorities.     Serjeant  G-lynn  said,  that  the  defend- 


MOSTYN   V.   FABRIGAS.  937 

ant,  Mr.  Verelst,  was  very  ably  assisted ;  so  he  was,  and  by  men 
Avlio  would  have  taken  the  objection,  if  they  had  thought  it 
maintainable,  and  the  actions  came  on  to  be  tried  after  this 
case  had  been  argued  once ;  yet  the  counsel  did  not  think  it 
could  be  supported.  Mr.  Verelst  would  have  been  glad  to 
make  the  objection ;  he  would  not  have  left  it  to  a  jury,  if  he 
could  have  stopped  them  short,  and  said.  You  shall  not  try  the 
actions  at  all.  I  have  had  some  actions  before  me,  rather  go- 
ing further  than  these  transitory  actions ;  that  is,  going  to 
cases  which  in  England  would  be  local  actions ;  I  remember 
one,  I  think  it  was  an  action  brought  against  Captain  Gamhier, 
who,  b}-  order  of  Admiral  Boscairen,  had  pulled  down  the 
houses  of  some  suttlers  who  supplied  the  navy  and  sailors  with 
spirituous  liquors ;  and  whethei'  the  act  was  right  or  wrong,  it 
was  certainly  done  with  a  good  intention  on  the  part  of  the 
admiral,  for  the  health  of  the  sailors  was  affected  by  frequent- 
ing them.  They  were  pulled  down :  the  captain  was  inatten- 
ti\'e  enough  to  bring  the  suttler  over  in  his  own  ship,  who 
would  never  have  got  to  England  otherwise;  and  as  soon  as  he 
came  here  he  was  advised  that  he  should  bring  an  action 
against  the  captain.  He  brought  his  action,  and  one  of  the 
counts  in  the  declaration  was  for  pulling  down  the  houses. 
The  objection  was  taken  to  the  count  for  pulling  down  the 
houses ;  and  the  case  of  Skinnei'  and  the  East  India  Company 
was  cited  in  support  of  the  objection.  On  the  other  side,  they 
produced  from  a  manuscript  note  a  case  before  Lord  Chief  Jus- 
tice Eijre^  where  he  overruled  the  objection  ;  and  I  overruled 
the  objection  upon  this  principle,  namely,  that  the  reparation 
here  was  personal,  and  for  damages,  and  that  otherwise  there 
would  be  a  failure  of  justice ;  for  it  was  upon  the  coast  of  Nova 
Scotia,  where  there  were  no  regular  courts  of  judicature ;  but 
if  there  had  been.  Captain  Gamhier  might  never  go  there 
again;  and  therefore  the  reason  of  locality  in  such  an  action 
in  England  did  not  hold.  I  quoted  a  case  of  an  injury  of  that 
sort  in  the  East  Indies,  where  even  in  a  court  of  Equity  Lord 
Hardu'icke  had  directed  satisfaction  to  be  made  in  damages  : 
that  case  before  Lord  Hardivicke  was  not  much  contested,  but 
this  case  before  me  was  fully  and  seriously  argued,  and  a  thou- 
sand pounds  damages  given  against  Captain  Gamhier.  I  do 
not  quote  this  for  the  authority  of  my  opinion,  because  that 
opinion  is  very  likely  to  be  erroneous ;  but  I  quote  it  for  this 


9o8  MOSTVN    V.    TAIUilGAS. 

reason  —  a  thousand  pounds  damages  and  the  costs  were  a  con- 
siderable sum.  As  the  captain  had  acted  by  the  orders  of  Ad- 
miral Boscmven,  the  representatives  of  the  admiral  defended 
the  cause,  and  paid  the  damages  and  costs  recovered.  The 
case  was  favourable;  for  what  the  admiral  did  was  certainly 
well  intended ;  and  yet  there  was  no  motion  for  a  new  trial. 

I  recollect  another  cause  that  came  on  before  mc :  which 
was  the  case  of  Admiral  PaUisicr.  There  the  very  gist  of  the 
action  was  local ;  it  was  for  destroying  fishing-huts  upon  the 
Labrador  coast.  After  the  treaty  of  Paris^  the  Canadians 
early  in  the  season  erected  Inits  ff)r  fishing;  and  b}-  that  means 
got  an  advantage,  by  beginning  earlier,  of  tlie  fishermen  who 
came  from  England.  It  Avas  a  nice  question  upon  the  right  of 
the  Canadians.  However,  the  admiral,  from  general  principles 
of  policy,  ordered  these  huts  to  be  destroyed.  The  cause  went 
on  a  great  way.  The  defendant  would  have  stopped  it  short 
at  once,  if  he  could  have  made  such  an  objection,  but  it  Avas 
not  made.  There  are  no  local  courts  among  the  Esquimaux 
Indians  upon  that  part  of  the  Labrador  coast ;  and  therefore 
whatever  injury  had  been  done  there  by  any  of  the  king's  offi- 
cers would  have  been  altogether  without  redress,  if  the  objec- 
tion of  locality  would  have  held.  The  consequence  of  that 
circumstance  shows,  that  where  the  reason  fails,  even  in  ac- 
tions which  in  En</Ia)id  would  be  local  actions,  yet  it  does  not 
hold  to  places  beyond  the  seas  AAithin  the  king's  dominions. 
Admiral  Palliser''s  case  went  off  upon  a  })roposal  of  a  refer- 
ence, and  ended  by  an  award.  But  as  to  transitor}-  actions 
there  is  not  a  colour  of  doubt,  that  every  action  that  is  transi- 
tory may  be  laid  in  any  county  in  England,  though  the  matter 
arises  beyond  the  seas ;  and  when  it  is  absolutely  necessary  to 
lay  the  truth  of  the  case  in  the  declaration,  there  is  a  fiction  of 
law  to  assist  you,  and  you  shall  not  make  use  of  the  truth  of 
the  case  against  that  fiction,  but  you  may  make  use  of  it  to 
every  other  purpose.  I  am  clearly  of  opinion  not  only  against 
the  objections  made,  but  that  there  does  not  appear  a  question 
upon  which  the  objections  could  arise. 

The  three  other  judges  concurred. 

Per  Cur.     Judgment  affirmed. 


It  is  very  curious  aud  instructive  to  trace  tlie  progress  of  the  English  law, 
respecting  the  locality  of  actions  [though  the  Judicature  Act,  1873,  renders 


MOSTYN    V.    FABRIGAS.  939 

the  subject  of  small  practical  importance  so  far  as  regards  the  question  of 
verute']. 

During  the  earliest  ages  of  our  judicial  history,  juries  were  selected  for 
the  verj'  reasons  which  would  now  argue  their  unfitness,  videlicet,  their  per- 
sonal acquaintance  with  the  parties  and  the  merits  of  the  cause ;  and  few 
rules  of  law  were  enforced  with  greater  strictness  than  those  which  required 
that  the  venue,  visne,  or  vicineUtm,  in  other  words  the  neighbourhood  whence 
the  juries  were  to  be  summoned,  should  be  also  that  in  which  the  cause  of 
action  had  arisen ;  in  order  that  the  jury  who  were  to  determine  it  principally 
from  their  own  private  knowledge,  and  who  were  liable  to  be  attainted  if  they 
delivered  a  Avrong  verdict,  might  be  persons  likely  to  be  acquainted  with  the 
nature  of  the  transaction  which  they  were  called  upon  to  try.  Peregrina 
judicia,  says  a  law  of  Henry  the  First,  modis  omnibus  suhmovemus. 

In  order  to  eflect  this  end,  the  parties  litigant  were  recjuired  to  state  in 
their  pleadings  with  the  utmost  certainty,  not  merely  the  county,  but  the 
very  irnne,  i.e.  the  very  district,  liundred  or  vill,  within  that  county,  where 
the  facts  that  they  alleged  had  taken  place,  in  order  that  the  sheriff  might  be 
directed  to  summon  the  jury  from  the  proper  neighbourhood,  in  case  issue 
should  be  taken  on  any  of  such  allegations.  It  followed,  of  course,  that 
a  new  venue  was  designated  as  often  as  the  allegations  of  the  parties  litigant 
shifted  the  scene  of  the  transaction  from  one  part  of  the  country  to  another. 

This  was,  however,  soon  found  to  produce  great  inconv'eniences ;  for  in 
mixetl  transactions,  which  may  happen  partly  in  one  place,  and  partl}'^  in 
another,  it  was  exti'emely  difficult  to  ascertain  the  right  venue;  and  as  the 
number  of  these  transactions  increased  with  increasing  civilisation,  these 
difficulties  about  determining  the  place  of  trial  became  of  constant  occur- 
rence, and  soon  induced  the  courts,  in  order  to  relieve  themselves,  to  take 
a  distinction  between  transitory  matters,  such  as  a  contract  which  might 
happen  anywhere,  and  local  ones,  such  as  a  trespass  to  the  realty,  which 
could  only  happen  in  one  particular  place ;  aud  thej'  established  as  a  rule, 
that  in  transitory  matters  the  plaintiff  should  liaA'e  a  right  to  lay  the  venue 
where  he  pleased,  and  the  defendant  should  be  bound  to  follow  it,  iinless 
indeed  his  defence  consisted  of  some  matter  in  its  natural  local,  aud  which 
must  therefore,  ex  necessitate  rei,  be  alleged  to  have  taken  place  where  it 
really  happened. 

However,  this  distinction  Avas  soon  abused  bj'  litigious  plaintiffs,  who,  by 
laying  the  venue  in  a  county  distant  from  the  defendant's  residence,  obliged 
him  to  come  thither  with  his  witnesses  ,■  Gilb.  C.  P.  89 ;  and  this  occasioned  a 
return  to  the  ancient  strictness  with  regard  to  venues  expressed  in  the  above 
law  of  Henry  the  First.  Accordingly  hj  stat.  G,  Richard  2,  cap.  2,  it  was 
enacted  that,  "  to  the  intent  that  wiits  of  debt,  and  account,  and  all  other 
such  actions  be  from  henceforth  taken  in  their  counties,  and  directed  to  the 
sherifJ's  of  the  counties  where  the  contracts  of  the  same  actions  did  arise,  that 
if,  from  henceforth,  in  pleas  upon  the  same  Avrits  it  shall  be  declared  that 
the  contract  thereof  was  in  another  county  than  is  contained  in  the  original 
writ,  that  then  the  said  writ  shall  be  utterly  abated : "  and,  as  the  words  of 
this  statute  were  found  not  quite  sufficient  to  effect  the  object,  statute  4 
Heurj'  the  Fourth,  c.  18,  directed  that  attorneys  should  be  sworn  "  that  they 
would  make  no  suit  in  a  foreign  county." 

After  these  statutes  the  judges  adopted  various  means  of  enforcing  their 
provisions.  At  first  they  examined  the  plaintiff  on  oath,  as  to  the  truth  of 
the  venue ;  afterwards  they  allowed  the  defendant  to  traverse  it  and  try  it 


940  MOSTYN   V.    FABKIGAS. 

in  an  issue,  Rastell,  Doht.  184,  b,  Fitz.  Abr.  BrirfS,  and  still  later  tiiey  made 
a  rule  of  court,  renderina;  it  highly  penal  on  attorneys  to  transgress  the  act 
of  Hen.  4;  R.  M.  1654,  pi.  5,  K.  B. ;  M.  1G54,  pi.  S,  C.  P. ;  but  linding  that  the 
mode  of  traversing  tlie  vetiue  produceil  great  delay,  tliey  at  last  adopted  tlie 
mode  of  changing  it  on  motion,  which  [continued  in  use  until  the  Judicature 
Act,  1873,  which  will  be  referred  to  below,  came  into  force]. 

But  all  these  alterations  in  the  law  applied,  it  must  be  borne  in  mind,  only 
to  transUortj  matters,  for  where  a  matter  alleged  in  pleading  was  of  a  lornl 
description,  whether  the  allegation  happened  in  a  declaration  or  in  any 
subsequent  pleading,  the  venue  for  the  trial  of  such  matter  could  be  nowhere 
but  at  the  very  place  whex-e  it  was  alleged  in  pleading  to  have  happened, 
and  therefore,  as  is  observed  in  the  text,  "  even  in  cases  the  most  transitory, 
if  the  cause  of  action  was  laid  in  London,  and  thei'e  was  a  local  justification 
as  at  Oxford,  the  cause  must  have  been  tried  in  Oxford,  not  in  London." 
Ace.  Ford  v.  Brooke,  Cro.  Eliz.  2G1 ;  Bowyefs  Case,  Moore,  410. 

And  it  was  probably  this  strictness  of  the  law  witli  regard  to  venue  which 
rendered  it  necessary  to  confine  the  defendant  so  long  to  a  single  plea,  since 
had  he  pleaded  several  pleas  on  which  issues  had  been  taken  triable  by  dif- 
ferent venues  there  could  have  been  no  single  trial  of  the  action;  and  accord- 
ingly we  find  that  it  was  not  till  after  tlie  eftect  of  the  statute  of  Charles  the 
Second  on  venues  had  become  well  settled,  that  the  very  same  year  which  put 
an  end  to  the  last  remnant  of  the  old  severity,  by  abolishing  the  necessity 
of  summoning  hundreders,  also  endowed  the  defendant  with  a  right  which 
he  ought  in  justice  always  to  have  possessed,  of  stating  everything  in  his 
defence  which  can  by  law  be  made  available  to  exonerate  him ;  the  right 
corresponding  to  which,  that,  namely,  of  replying  to  the  defence  everything 
which  has  a  direct  tendency  to  rebut  it,  was,  even  in  our  more  advanced  times, 
denied  the  plaintiff,  until  the  passing  of  the  Common  Law  Procedure  Amend- 
ment Act,  1852,  s.  81. 

But  to  return  to  the  progress  of  the  law  of  venue,  stat.  16  &  17  Car.  2,  c.  8 
(one  of  the  statutes  of  Jeofails),  enacted,  "  that  after  judgment  no  verdict 
shall  be  arrested  or  reversed,  for  that  there  is  no  right  venue,  so  as  the  cause 
of  action  Avere  tried  by  a  jury  of  the  proper  county  or  place  ichere  the  action 
was  laid." 

Considerable  difticulty  arose  on  the  construction  of  this  statute,  many  law- 
yers contending  that  the  Avords  "  the  proper  county  or  place  where  the  action 
is  laid "  must  be  understood  to  mean  the  proper  county  or  place  where  the 
issue  arises,  so  that  if  the  issue  arose  at  Dale  in  Oxfordshire,  and  the  ^^enue 
was  Sale  in  the  same  county,  here  they  said  was  a  case  within  the  statute, 
there  being  a  right  county  but  a  wrong  venue.  However,  it  was  at  length 
decided,  in  Craft  v.  Boite,  1  Saund.  246,  b,  contrary  to  the  opinion  of  Twys- 
den,  J.,  and  was  settled  by  many  subsequent  cases,  that  the  words  "  ivJiere  the 
action  was  laid"  mean,  where  it  was  laid  in  the  declaration,  not  in  any  subse- 
quent pleading.  And  accordingly  it  [was  ever  afterwards  held]  sufticient  if 
the  jury  [were]  summoned  from  the  venue  laid  in  the  declaration. 

This  vemie  indeed  was  at  that  time  the  rill  or  hundred  where  the  cause  of 
action  was  stated  in  the  declaration  to  have  arisen ;  and  anciently  the  jury,  in 
order  that  they  might  be  persons  well  acquainted  with  the  controversy,  were 
summoned  out  of  the  very  hundred  designated  for  the  venue.  Afterwards  the 
rule  was  relaxed,  and  in  the  reign  of  Edward  the  Third,  it  was  sufficient  if 
the  jury  contained  six  hundreders.  Gilb.  C.  P.  c.  8.  This  number  was  in 
Henry  the  Sixth's  reign  reduced  to  four;  Portescue  de  Laud.  c.  25;  it  was 


MOSTYX   V.    FABRIGAS.  941 

afterwards,  by  stat.  35  Hen.  8,  c.  G,  restored  to  siy- ;  stat.  27  Eliz.  c.  6, 
reduced  it  to  two ;  and  so  the  law  remained  till  long  after  the  stat.  16  &  17 
Car.  2,  c.  8,  after  which  act  it  was  still  neces.sary  that  tv:o  at  least  of  the 
jurors  should  be  summoned  from  the  humlred  laid  in  the  declaration;  and  if 
there  were  not  so  many,  it  was  cause  of  challenge.  But  this  last  remnant  of 
the  ancient  strictness  was  abolished  by  4  &  5  Anne,  c.  G,  except  so  far  as  con- 
cerned actions  founded  upon  penal  statutes,  to  which  the  abolition  was  ex- 
tended by  24  G.  2,  c.  18.  So  that  [thenceforth  it  was]  in  all  cases  sufficient 
if  the  jury  [were]  summoned  de  corpora  comitatus,  i.e.,  from  the  body  of  the 
conntij  in  which  the  ve7ine  [was]  laid  by  the  declaration. 

It  has  been  already  mentioned  that  in  ti'ausitory  actions  the  judges  adopted 
various  modes  of  enforcing  tlie  policy  of  the  statute  of  Richard  the  Second, 
aud  oljliging  the  plaintiff  to  lay  his  venue  where  the  transaction  in  dispute  had 
really  occurred.  At  last  they  had  recourse  to  a  practice,  which  seems  to  have 
been  first  introduced  in  the  reign  of  James  the  First,  pe?-  Holt,  C.  J.,  2  Salk. 
670;  (the  first  case  in  the  books  is  Lord  Gerrard  v.  Flo>/d,  1  Sid.  185,  E..  IG 
Car.  2,)  founded  upon  the  equity  of  that  enactment,  by  which  they  held  them- 
selves authorised,  upon  affidavit  made  that  the  cause  of  action,  if  any,  arose 
in  the  county  of  A.,  and  not  in  the  county  of  B.,  in  which  the  vetute  was  laid, 
or  elsewhere  out  of  the  county  of  A.,  to  change  the  venue  to  the  county  of 
A.,  and  the  motion  for  so  doing  was  of  course,  only  requiring  counsel's 
signature.  R.  H.  2  W.  4,  pi.  103.  But  as  it  would  be  hard  to  conclude  the 
plaintiff  on  the  single  affidavit  of  the  defendant,  it  was  further  held,  that  the 
venue  must  be  brought  back,  if  the  plaintiff  undertook  to  give  material  evi- 
dence in  the  county  in  which  the  action  was  brought,  failing  which  he  must 
have  been  non-suited,  Avhich  was  equivalent  to  an  abatement  of  the  writ, 
according  to  the  statute,  Gilb.  C.  P.  90;  Snntler  v.  Heard,  2  Bl.  1032,  1033; 
Burckshav:  v.  Hopkins,  Cowp.  410;    Watkins  v.  Toioers,  2  T.  R.  275. 

There  were  many  cases  of  transitory  actions  in  which  the  defendant  could 
not  by  possibility  make  the  above  [common]  affidavit,  [but  could  procui'e  a 
change  of  venue  on  a  special  affidavit  in  the  interests  of  justice.  See  Tidd's 
Prac.  G05]. 

By  the  rules  of  Hilary  Term,  1853,  all  former  written  rules  of  practice 
[were]  abolished,  and  the  only  rule  substituted  relating  to  venue  [was]  the 
18th  which  [was]  that  "No  venue  can  l)e  changed  Avithout  a  special  order  of 
the  court  or  judge  unless  by  consent  of  the  parties." 

[By  3  &  4  W.  4,  c.  42,  s.  23,  power  Avas  given  to  the  court  or  a  judge  to 
alter  the  venue  in  certain  cases,  even  in  local,  as  distinguished  from  transitory 
actions,  and  this  power  was  further  enlarged  by  the  C.  L.  P.  Act,  1852, 
§§41,182. 

As  to  the  right  of  the  Crown  in  transitory  but  not  in  local  actions,  to  lay 
and  retain  the  venue  where  it  pleases,  see  Attorney-General  v.  Lord  Churchill, 
8  M.  &  W.  171 ;  and  as  to  similar  rights  in  the  Attorney-General  for  the 
Prince  of  "Wales,  see  Attorney-General  to  the  Prince  of  Wales  v.  Grossman, 
L.  R.  1  Exch.  381,  and  the  cases  therein  cited.  As  to  the  right  of  the  Crown 
under  28  &  29  Vict.  c.  104,  s.  46,  to  change  the  venue  in  certain  cases  as  of 
right,  see  Dixon  v.  Farrar,  18  Q.  B.  D.  43. 

An  attorney  suing  in  person  had,  before  the  Judicature  Act,  1873,  the 
privilege  to  lay  and  retain  the  venue  in  Middlesex,  and  the  court  had  no  power 
to  change  it.     Grace  v.  Wilmer,  26  L.  J.  Q.  B.  1. 

The  law  on  this  subject  is  now  contained  in  the  Judicature  Acts,  1873  (36 
&  37  Vict.  c.  66),  and  1875  (38  &  39  Vict.  c.  77),  and  the  rules  made  in  pnrsu- 


942  MOSTYN    V.    FABllIGAS. 

ance  of  tliose  acts.  By  Order  3G,  Rule  1,  it  is  provided  as  follows:  "1. 
There  shall  be  no  local  i^emia  for  the  trial  of  any  action,  except  where  other- 
wise provided  by  statute.  Every  action  iu  eveiy  division  shall,  uidoss  the 
court  or  a  judge  otherwise  orders,  be  trieil  in  the  county  or  place  named  on 
the  statement  of  claim,  or  (where  no  statement  of  claim  has  l)een  delivered 
or  required)  l)j'  a  notice  in  writing  to  be  served  on  the  defendant,  or  his 
solicitor,  within  six  days  after  appearance.  Where  no  i)laceof  trial  is  named, 
the  place  of  trial  .shall,  unless  the  court  or  a  judge  shall  otherwise  order,  l)e 
the  county  of  Middlesex."     See  as  to  this  rule,  Locke  v.  White,  33  Ch.  1).  308. 

Qucere  whether,  notwithstanding  the  qualification  "  except  where  otherwise 
provided  by  statute,"  introduced  above  since  the  Rules  of  1875,  the  effect  of 
s.  33  of  the  Judicature  Act,  1875,  Order  3G,  Rule  1,  above  stated,  and  s.  G  of 
the  Statute  Law  Revision  and  Civil  Procedure  Act,  1883,  may  not  be  to  repeal 
all  statutory  provisions  for  local  venues. 

By  rule  1a.  of  the  same  order,  it  is  provided  that  the  provisions  of  Rule  1 
shall  apply  to  every  action,  notwithstanding  that  it  may  liave  been  assigned 
to  any  judge. 

In  deciding  upon  applications  to  change  the  place  of  trial,  the  courts  will, 
no  douljt,  be  governed  to  a  great  extent  by  the  same  principles  as  governed 
the  practice  previously  to  the  Judicature  Act,  on  motions  to  change  the  venue. 
In  Church  v.  Barnett,  L.  R.  6  C.  P.  IIG,  Willes,  J.,  stated  the  true  rule  to  be 
that  a  plaintiff'  had  the  right  to  lay  his  }-emie  whei'e  he  thought  proper.  If 
he  did  so  capriciously  a  judge  would  cliange  the  venue  to  the  place  where  the 
cause  of  action  arose.  Hut  where  he  had  not  exercised  a  capricious  choice, 
the  defendant  who  sought  to  deprive  him  of  an  undoubted  right  nnist  show 
that  thei'e  would  be  a  practical  preponderance  of  convenience  in  trying  the 
cause  in  the  place  where  the  cause  of  action  arose.  The  same  doctrine  as  to 
the  preponderance  of  convenience  was  laid  down  in  Helliwell  v.  Ilohson,  3  C. 
B.  N.  S.  761 ;  Durie  v.  IIopiooocl,  7  C.  B.  N.  S.  835,  the  places  where  the  con- 
tract was  made  and  where  the  breach  took  place  being  also  elements  for  con- 
sideration. Levy  V.  Rice,  L.  R.  5  C.  P.  119.  The  court  would  not  in  general 
interfere  with  an  order  to  change  the  venue  made  by  a  judge  at  chambers, 
unless  he  acted  on  a  misconception  of  the  facts,  Schuster  v.  W'Tieelright,  8  C. 

B.  N.  S.  383;  see  Jackson  v.  Kidd,  29  L.  J.  C.  P.  221 ;  Church  v.  Barnett;  Levy 
V.  Rice,  nhi  sup.,  and  Schroder  v.  Myers,  34  W.  R.  261,  decided  in  the  C.  A. 
since  the  Judicature  Acts. 

In  Creni  v.  Bennett,  54  L.  J.  Ch.  85,  and  Powell  v.  Cobb,  29  Ch.  D.  486,  54 
L.  J.  Ch.  962,  which  were  actions  in  the  Chancery  Division  since  the  Judica- 
ture Acts,  the  question  was  treated  as  one  for  the  discretion  of  the  judge  to 
whom  the  actions  were  assigned  as  to  the  preponderance  of  convenience. 
But  where  Bacon,  V.-C,  made  an  order  changing  the  place  of  trial  to  Lon- 
don, on  the  ground  merely  that  the  action  was  brought  in  the*  Chancery 
Division,  the  C.  A.  set  aside  the  order.  Philips  v.  Beale,  26  Ch.  D.  621;  54 
L.  J.  Ch.  80.  In  Powell  v.  Cobb  (siip.),  Pearson,  J.,  seems  to  intimate  that 
the  place  of  trial  cannot  be  changed  on  the  application  of  the  plaintiff'.     The 

C.  A.  express  no  opinion  on  this  point. 

To  turn  now  from  the  technical  rules  respecting  the  venue  or  place  of  trial 
to  more  substantial  doctrines  with  regard  to  causes  of  action  arising  abroad. 

"  Our  courts  are  said  to  be  more  open  to  admit  actions  founded  upon  for- 
eign transactions  than  those  of  any  other  European  country ;  but  there  are 
restrictions  in  respect  of  locality  which  exclude  some  foreign  causes  of 
action  altogether,  namely,  those  which  would  be  local  if  they  arose  in  Eng- 


MOSTYX    V.    FABRIGAS.  943 

land,  such  as  trespass  to  land;  and  even  with  respect  to  thoso  not  falling 
within  tliat  description,  our  courts  do  not  undertalve  universal  jurisdiction." 
FJiillips  V.  Eyre,  pir  Willcs,  ,T.,  J..  W.  G  ^l  B.  1,  28;  Donlson  v.  Matthews,  4  T. 
R.  503. 

To  some  extent,  no  doubt,  the  difllculty  as  to  local  actions,  sncli  as  trespass 
to  lands  abroad,  being  tried  in  our  courts,  arose  merely  from  technical  rules 
as  to  the  necessity  in  such  cases  for  a  local  venue  as  distinguished  from  any 
inherent  want  of  jurisdiction  in  our  courts  to  try  them.  (See  the  judgment 
in  the  principal  case.)  And  it  may  be  a  question  how  far  the  effect  of  the 
Judicature  Act,  1873,  abolishing  every  local  venue,  is  not  to  get  rid  of  this 
disal)ility,  especiallj'  where  the  parties  are  domiciled  in  England;  see  per 
Lord  Cairns,  C,  WhUaker  v.  Forbes,  1  C  P.  D.  51. 

But  tliere  are  broader  grounds  on  which  our  courts  decline  jurisdiction, 
sometimes  altogether,  sometimes  perhaps  when  the  parties  are  aliens,  and 
there  is,  therefore,  no  jurisdiction  founded  upon  the  lex  domicilii. 

Tluis  our  courts  Avould  refuse  to  entertain  any  proceedings  wliere  the  prop- 
erty is  real  and  situate  abroad,  such  as  ejectment  (see  the  observations  of 
Lord  Mansfield  in  the  judgment  in  the  principal  case,  Graham  v.  Massey,  23 
Ch.  D.  743)  or  a  bill  for  partition,  Carteret  v.  Petty,  2  Swab.  323  n.,  and  this, 
whether  the  parties  be  aliens  or  domiciled  in  England. 

And  thougli  in  some  cases  the  Courts  of  Equity  have  entertained  suits 
affecting  lands  beyond  the  jurisdiction  (as  by  decreeing  specific  performance 
of  articles  concerning  boundaries  of  provinces  in  America,  Penn  v.  Lord 
JJaUiiJiore,  1  Ves.  444,  2  Tudor's  L.  C.  in  Eq.  923;  or  bj'  a  foreclosure  decree 
of  a  mortgage  of  land  situate  abroad,  Toller  v.  Carteret,  2  Vern.  494;  Paget 
V.  Ede,  L.  R.  18  Eq.  118),  this  exceptional  jurisdiction  is  exercised  only  by 
reason  of  the  authority  of  the  court  in  personam,  and,  as  it  seems,  where 
there  is  privity  between  the  parties  arising  by  reason  of  a  contract  made 
within  the  jurisdiction,  Norn's  v.  Chambers,  29  Beav.  246,  affirmed  3  D.  F.  & 
J.  583;  Cockney  v.  Anderson,  31  Beav.  452,  1  D.  J.  &  S.  365;  Norton  v.  Flor- 
ence  Land  Co.,  7  Ch.  D.  332;  see  also  Re  Llolmes,  2  J.  &  H.  527;  Blake  v. 
Blake,  18  W.  R.  944;  PLeiner  v.  Marquis  of  Salisbury,  2  Ch.  D.  378,  45  L.  J. 
Ch.  250,  in  which  last  case  Malins,  V.-C,  refused  to  entertain  a  bill  for  dis- 
covery in  aid  of  proposed  proceedings  to  recover  land  in  India. 

On  the  other  hand,  speaking  generally,  (and  subject  to  the  distinction  be- 
fore mentioned  in  respect  of  local  actions,)  where  the  action  is  in  i^ersonam, 
whether  in  respect  of  a  contract  or  of  a  tort,  our  courts  will,  it  is  appre- 
hended, entertain  it,  though  it  may  have  arisen  abroad,  and  though  the 
parties  to  it  may  be  aliens,  provided  that  service  of  process  is  effected 
according  to  their  rules.  See  Story's  Confiict  of  Laws,  542-543 ;  Wharton's 
Conflict  of  Laws,  2nd  ed.  743;  Phillimore  Priv.  Int.  Law,  701;  Buenos  Ayres 
Railvny  Co.  v.  Northern  Railway  Co.  of  Buenos  Ayres,  2  Q.  B.  D.  210,  46  L. 
J.  Q.  B.  224. 

As  regards  contractual  obligations,  however,  a  distinction  has  been  taken, 
that  where  the  contract  is  made  abroad,  and  its  subject-matter  Is  abroad,  an 
English  court  will  not  entertain  a  cause  of  action  in  respect  of  it,  if  the 
parties  be  aliens,  though  it  would  do  so  if  thej'  were  domiciled  here.  See 
Matthei  v.  Galitzin,  L.  R.  18  Eq.  340,  and  the  judgment  of  the  Master  of  the 
Rolls  in  Cookney  v.  Anderson,  31  Beav.  466,  which  judgment  was  aflSrmed,  1 
D.  J.  &  S.  365.  Quoire,  whether  the  dicta  in  the  last  cited  cases  are  not  too 
wide.  In  Doss  v.  Secretary  of  State  for  India,  L.  R.  19  Eq.  535,  Maliu'*.  V.-C, 
approves  of  and  follows  Matthei  v.  Galitzin. 


944  MOSTYX    V.    FABKIGAS. 

In  Hart  v.  ITerwirj,  L.  R.  8  Ch.  860;  42  L.  J.  Ch.  457,  tlie  plaintifl',  an  Kng- 
lishnian,  made  at  Hamburg  an  agreement  with  the  defendant  Ik-rwig,  domi- 
ciled at  Hamburg,  for  tlie  sale  by  Hervvig,  to  the  plaintitl',  of  a  Hamburg  ship 
then  on  voyage,  to  be  delivered  to  the  plaintiff  at  any  plate  whither  she 
might  be  ordered  for  discharge,  the  seller  making  allowance  if  she  arrived  in 
a  damaged  state.  The  ship  was  ordered  to  Sunderland  to  discharge,  but  on 
arrival,  delivery  was  refused  except  on  payment  of  the  full  price.  The 
Lords  Justices  affirmed  an  order  of  Malins,  V.-C,  restraining  the  removal  of 
the  ship  by  the  defendant  Herwig,  and  the  master,  who  was  also  made  a 
defendant.  Sir  Wm.  James,  L.  J.,  said  "  The  substantial  <|uestion  is,  whether 
this  Court  has  power  to  prevent  a  specific  chattel  from  being  removed  out  of 
the  jurisdiction  until  a  question  relating  to  that  chattel  is  decided.  I  am  of 
opinion  that,  according  to  the  established  law  of  nations,  if  this  suit  were  a 
suit  for  damages  only,  or  one  which  could  ix'sult  in  damages  only,  then  the 
plaintiff  must,  in  order  to  enforce  his  claim  for  damages,  go  and  seek  the 
forum  of  the  defendant.  But  where  the  contract,  as  in  this  case,  though 
made  abroad,  is  to  deliver  a  thing  in  specie  in  this  country,  and  the  thing 
itself  is  brought  here,  then  the  court  here,  in  the  exercise  of  its  discretion, 
will  see  that  the  thing  to  be  delivered  in  this  country  does  not  leave  this 
country,  so  as  to  defeat  the  right  of  the  plaintitt"  to  have  it  so  delivered." 

It  is  presumed  that  Lord  Justice  James  in  saying  that,  if  the  suit  was  a 
suit  for  damages  only,  then  the  plaintiff  must  seek  tiie  forum  of  the  defend- 
ant, is  speaking  of  a  case  in  which  there  had  been  no  service  of  process 
within  the  jurisdiction,  and  that  the  necessity  would  arise  from  this,  and  not 
from  any  inherent  lack  of  jurisdiction  in  our  courts  to  try  such  a  case,  if  ser- 
vice of  process  had  been  effected.  See  the  judgment  of  Lord  Justice  Mellish. 
As  to  service  of  process,  see  post,  p.  (!<!!,). 

But  as  in  the  case  of  torts,  so  also  in  the  case  of  contracts,  our  courts  will 
not  enforce  contracts  illegal,  according  to  English,  though  legal  accoi-ding  to 
the  law  of  the  place  where  they  are  made:  Santos  v.  IlUdfje,  G  C.  B.  N.  S. 
841,  which  decision  was  reversed  in  error,  8  Id.  801,  but  on  the  ground  that 
the  contract  sought  to  l)e  enforced  was  not  prohibited  by  English  law.  See 
also  Grell  v.  Lcnj,  IG  C.  B.  N.  S.  73;  Hope  v.  Hope,  20  L.  1).  Ch.  417.] 

As  regards  torts,  there  seems  to  be  no  reason  why  aliens  should  not  sue  in 
England  for  personal  injuries  done  them  l)y  other  aliens  abroad  when  such 
injuries  are  actionable  both  by  the  laAV  of  England  and  also  by  that  of  the 
country  where  they  are  committed,  and  the  impression  which  had  prevailed 
to  the  contrary  (see  ante,  p.  650),  seems  to  be  erroneous.  [See  "  The 
Halley,"  L.  R.  2  P.  C.  193,  37  L.  J.  Adm.  33. 

But  to  found  a  cause  of  action  between  aliens,  or  between  aliens  and 
British  subjects,  or  between  British  subjects  in  an  English  court  for  a  wrong 
committed  abroad,  both  these  conditions  must  be  fulfilled.  See  the  judgment 
in  Phillips  v.  Eyre,  L.  R.  6  Q.  B.  1,  40  L.  J.  Q.  B.  28,  and  "  The  Maria  Mox- 
ham  "  in  C.  A.,  1  P.  D.  107,  45  L.  J.  Prob.  3G,  and  per  Lord  Esher,  M.  R., 
Chartered  Mercantile  Bank  of  India  v.  Xetherlands  India  Steam  Navigation 
Company,  10  Q.  B.  D.  at  p.  536  (who,  however,  holds  that  "  for  a  tort  com- 
mitted on  the  high  sras  between  two  foreign  ships  an  action  can  be  maintained 
in  this  country  although  it  is  not  a  tort  according  to  the  laws  of  the  courts 
in  the  foreign  country  to  which  the  ships  belong").  Thus  in  the  case  of 
"  The  Halley,"  sitp.,  the  Judicial  Committee  of  the  Privy  Council  reversing 
the  decision  of  the  Court  of  Admiralty  pronounced  against  a  suit  in  the 
Admiralty  founded  upon   a  liability  by  the  law  of   Belgium   for  collision 


MOSTYIST    V.    FABRIGAS.  945 

caused  by  the  act  of  a  pilot,  whom  the  shipowner  was  compelled  by  that  law 
to  employ,  and  for  the  act  of  whom  therefore,  as  not  being  his  agent,  he  was 
not  responsible  by  English  law. 

And  conversely,  in  P/ii7?;)).s  v.  Eyre,  sup.,  the  Court  of  Exchequer  Chamber 
upheld  the  decision  of  the  Queen's  Bench  that  no  action  could  be  maintained 
in  an  English  Court  in  respect  of  an  assault  and  imprisonment  which  had 
been  rendered  lawful  in  Jamaica,  where  the  alleged  acts  took  place,  by  an 
Act  of  Indemnity.  That  historical  case  is  a  remarkable  exemplification  of 
the  doctrine  of  English  law  now  under  discussion;  because  it  is  thereby 
solemnly  decided  in  the  words  of  Cockburn,  C.  J.,  that  "  the  principle  that 
an  act  authorised  by  the  law  of  the  country  in  which  it  takes  place,  cannot  be 
the  subject  of  a  legal  proceeding  here,  is  equally  applicable  to  an  act  origi- 
nally wrongful  but  legalised  by  an  ex  post  facto  law  "  of  the  foreign  country. 

It  was  an  action  brought  by  an  inhabitant  of  Jamaica  against  the  defendant, 
who  had  been  governor  of  that  island,  for  an  assault  and  false  imprisonment; 
and  the  acts  complained  of  took  place  during  the  rebellion  in  that  island  in 
the  year  ISfiS.  The  defendant  pleaded  an  Act  of  Indemnity  passed  by  the 
Jamaica  Legislature,  to  which  plea  the  plaintitf  demurred.  On  the  argument  a 
number  of  ol)jections  were  urged  against  the  plea,  and  inter  alia,  that  such 
an  act  could  not  take  away  the  plaintiff's  right  of  action  in  this  country. 

The  Court  of  Queen's  Bench,  and,  on  appeal,  that  of  Exchequer  Chamber, 
unanimously  decided  in  favour  of  the  defendant.  In  delivering  the  judgment 
of  the  latter  court,  Willes,  J.,  says  (p.  28  of  L.  R.)  :  "A  right  of  action, 
whether  it  arise  from  contract  governed  by  the  law  of  the  place  or  wrong,  is 
equallj^  the  creature  of  the  law  of  the  place,  and  subordinate  thereto.  The 
terms  of  the  contract  or  the  character  of  the  subject-matter  may  show  that 
the  parties  intended  their  bargain  to  be  governed  by  some  other  law ;  but 
prima  facie  it  falls  under  the  law  of  the  place  where  it  was  made.  And  in 
like  manner  the  civil  liability  arising  out  of  a  wrong  derives  its  birth  from 
the  law  of  the  place,  and  its  character  is  determined  by  that  law.  Therefore 
an  act  committed  abroad,  if  valid  and  unquestionable  by  the  law  of  the  place, 
cannot,  so  far  as  civil  liability  is  concerned,  be  drawn  in  question  elsewhere, 
unless  by  force  of  some  distinct  exceptional  legislation,  superadding  a  lia- 
bility other  than  and  besides  that  incident  to  the  act  itself.  In  this  respect  no 
sound  distinction  can  be  suggested  between  the  civil  liability  in  respect  of  a 
contract  governed  by  the  law  of  the  place  and  a  wrong.  .  .  .  "Where  an 
obligation  ex  delicto  to  pay  damages  is  discharged  and  avoided  by  the  law 
of  the  country  where  it  was  made,  the  accessory  right  of  action  is  in  like 
manner  discharged  and  avoided." 

As  to  ex  post  facto  legislation,  see  also  Ronqitette  v.  Orermann,  L.  K.  10  Q. 
B.  536;  44  L.  J.  Q.  B.  221. 

Again,  in  "  The  Maria  Moxham,"  1  V.  D.  107,  45  L.  J.  Pi'ob.  36,  which  was  a 
cause  of  damage  instituted  by  an  English  company  against  the  owners  of  an 
English  ship  to  a  pier  belonging  to  the  company,  but  situate  in  a  Spanish 
port,  the  Court  of  Appeal,  overruling  the  decision  of  Sir  R.  Phillimore,  upheld 
an  alleged  defence  that  if  the  collision  was  caused  by  negligence,  it  was  neg- 
ligence of  the  master  and  mariners  of  the  ship,  and  that  by  the  law  of  Spain 
the  owners  Avere  not  in  such  a  case  liable.  In  this  case  any  objection  to  the 
jurisdiction  of  the  English  court  was  waived.  See  also  Scott  v.  Seymour,  1 
H.  &  C.  219;  The  Suhmarine  Telegraph  Co.  v.  Dickson,  15  C.  B.  N.  S.  759; 
33  L.  J.  C.  r.  139;  Hart  v.  Gumpach,  L.  R.  4  P.  C.  439;  42  L.  J.  P.  C.  25. 
The  Mali  Ivo,  L.  R.  2  A.  &  E.  35G ;  38  L.  J.  Adm.  34. 


946  MOSTYN    V.    FAIUMGAS. 

The  foregoing  remarks  as  to  the  capacity  of  the  English  courts  to  take 
cognisance  of  actions  against  foreigners  must  be  taken,  subject  to  the  quali- 
fication, that  to  give  an  English  court  jurisdiction  in  personal  actions  there 
must  be  service  of  its  process  within  the  jurisdiction,  or  in  certain  cases 
service  or  notice  in  lieu  thereof  without  the  jurisdiction,  as  provided  for 
under  the  .Judicature  Acts  by  the  rules  in  Order  XI.  This  is  of  course  a 
technical  (luestion,  totally  distinct  from  the  broader  one  discussed  in  these 
notes,  as  to  tlie  capacity  of  English  courts  to  take  cognisance  of  foreign 
causes  of  action. 

As  to  the  jurisdiction  of  our  courts  over  a  chattel  when  brought  to  tliis 
country,  see  Hart  v.  Herwig,  L.  11.  8  Cli.  8G0,  42  L.  J.  Ch.  457. 

A  special  jurisdiction  has  sometimes  been  exercised  by  the  Admiralty 
Division  over  foreign  ships  at  the  request  of  the  representative  of  the  state 
to  whose  subjects  such  ships  belong.  See  "  The  Agincoiirl,"  2  V.  1).  239, 
"  The  Evangelistria,"  Id.  241,  46  L.  J.  P.  1).  &  A.  1. 

As  to  the  limits  of  the  Crown's  jurisdiction  not  extending  beyond  low  water 
mark,  see  Reg.  v.  Keyn,  2  Ex.  1).  63;  46  L.  J.  M.  C.  17;  Harris  v.  Owners  of 
"  Franconia,"  2  C.  P.  D.  173;  46  L.  J.  C.  P.  363,  and  41  &  42  Vict.  c.  73. 

As  to  when  a  foreigner  can  be  made  a  bankrupt  in  England,  see  ex  parte 
Crispin,  L.  R.  8  Ch.  374 ;  42  L.  J.  Bank.  65. 

As  to  when  bankruptcy  proceedings  can  be  served  on  a  foreigner,  see  ex 
parte  Pascal,  1  Ch.  D.  509;  Ex  parte  Blain,  12  Ch.  D.  522.  All  these  three 
cases  were  decided  under  the  Bankruptcy  Act,  1869.] 

Locus  regit  actum  is  a  canon  of  general  jurisprudence,  and  must  he  assumed 
in  the  absence  of  contrary  evidence  to  hold  good  in  every  system  of  law. 
(lUepratte  v.  Young,  4  De  G.  &  S.  217. 

[For  recent  applications  of  this  maxim  see  Cammell  v.  Sexoell,  5  II.  &  N. 
728,  where  a  sale  in  Norway  of  goods  there,  abandoned  to  English  under- 
writers, was  upheld  as  valid  by  Norwegian  though  invalid  by  English  law; 
Munroe  v.  PiJkington,  2  B.  &  S.  11;  Dent  v.  Smith,  L.  11.  4  Q.  B.  414;  Messina 
V.  Petrocochino,  L.  11.  4  P.  C.  144;  Castrique  v.  Imrie,  L.  R.  4  H.  L.  414;  39 
L.  J.  C.  P.  350;  Godard  v.  Gray,  L.  R.  6  Q.  B.  139;  40  L.  J.  Q.  B.  62,  cases  in 
which  foreign  judgments  have  been  enforced,  though  the  cases  would  have 
been  decided  otherwise  according  to  English  law.  In  Simpson  v.  Fogo,  1  H. 
&  M.  195;  32  L.  J.  Ch.  249,  Wood,  V.-C,  declined  to  enforce  a  decree  of  a 
court  of  Louisiana,  acting  in  defiance  of  British  law  and  the  comity  of 
nations.  Compare  with  this  case  Liverpool  Marine  Credit  Co.  v.  Hunter,  L.  R. 
3  Ch.  479. 

In  a  contract  by  charter-party  the  law  of  the  flag  as  a  general  rule  prevails, 
Lloyd  v.  Guihert,  L.  R.  1  Q.  B.  115 ;  and  the  same  law  governs  the  right  of  a 
shipmaster  to  bottomry  his  cargo,  "  The  Gaetano  and  Maria,"  7  P.  D.  137; 
but  this  is  only  prima  facie,  and  the  whole  circumstances  must  be  looked  at 
to  see  what  was  the  intention  of  the  parties.  Chartered  Mercantile  Bank  of 
India  v.  Netherlands  Steam  Navigation  Co.,  10  Q.  B.  D.  521,  and  see  Moore  v. 
Harris,  1  App.  Cas.  331.  On  the  question  whether  our  courts  recognise  a 
"general  maritime  law,"  distinct  from  the  law  of  this  country,  see  Llogd  v. 
Guihert,  sup.,  "  The  Patria,"  L.  R.  3  A.  &  E.  436  ;  "  The  Gaetano  and  Maria,"  uhi 
sup. ;   "  The  Leon,"  6  P.  D.  148.] 

With  respect  to  transitory  causes  of  action  which  have  accrued  abroad, 
like  that  in  the  principal  case  of  Mostyn  v.  Fahrigas,  it  must  be  remarked 
that  although  the  courts  of  this  country  will  entertain  them,  still  they  will,  in 
adjudicating  on  tliem,  be  governed  by  the  laws  of  the  country  in  wliich  they 


MOSTVN    V,    FABRIGAS.  947 

arose  [or  in  the  case  of  contracts,  by  the  law  with  reference  to  which  the 
parties  ma)'  l?e  presumed  to  have  contracted,  Lloyd  v.  Guibert,  35  L.  J.  Q.  B. 
74;  6  B.  &  S.  100;  Smith  v.  WegueUn,  L.  R.  8  Eq.  198;  ex  parte  Holthausen, 
L.  R.  9  Ch.  722,  per  Mellish,  L.  J. ;  Cohen  v.  S.  E.  R.  2  Ex.  D.  253,  46  L.  J.  Ex. 
417;  De  Greuchy  v.  Wills,  4  C.  P.  D.  362;  Adams  v.  Clutterbuck,  10  Q.  B.  D. 
403;  52  L.  J.  Q.  B.  609;  Chartered  Merc.  Bank  v.  XclherhDids  Steam  Naviga- 
tion Co.,  iihisup.  On  the  hitter  i)oint  the  broad  rule  is  tliat  tlie  la^v  of  a  coun- 
try where  a  contract  is  made  presumably  "overns  the  nature  of  the  oblisiatiou 
and  the  interpretation  of  it  unless  the  contrary  appears  to  be  the  express 
intention  of  the  parties,  per  Lord  Esher,  M.  R.,  Jacobs  v.  Credit  Lyonuais,  12 
Q.  B.  D.,  at  p.  600;  Chamberlain  v.  Napier,  15  Ch.  D.  614,  in  which  case,  Hall, 
V.-C,  held  that  such  an  intention  did  appear].  The  distinction  laid  down  in 
all  cases  of  this  description  is  between  the  cause  of  action,  which  is  to  be 
judged  of  with  reference  to  the  law  of  the  country  where  it  originated,  and 
the  mode  of  procedure  which  must  be  adopted  as  it  happens  to  exist  in  the 
country  where  the  action  is  brought. 

[This  distinction  is  illustrated  by  the  decisions  which  have  been  given  in 
our  courts  as  to  the  liabilities  and  rights  of  parties  to  and  holders  of  bills 
of  exchange  drawn,  accepted,  and  indorsed  in  difterent  countries,  and  by  the 
enactment  in  the  Bills  of  Exchange  Act,  1882,  s.  72  (set  forth  p>ost,  p.  676), 
which  presumablj'  was  intended  to  embody  the  effect  of  those  decisions.] 

Thus  in  Trimbey  v.  Viynier,  1  Bing.  N.  C.  151.  it  was  held  [on  the  assump- 
tion] that  by  the  law  of  France,  an  indorsement  in  blank  does  not  transfer 
any  propert)'  in  a  bill  of  exchange  [or  promissory  note  that]  the  holder  of  a 
[note  made]  in  France  and  there  indorsed  in  blank  cannot  reco\er  upon  it  in 
this  country  against  the  [maker. 

And  although  in  BradlaiKjh  v.  De  Rin,  L.  R.  5  C.  P.  473,  (I)etter  reported 
39  L.  J.  C.  P.  254,)  the  Court  of  Exchequer  Chamber  declined  to  toUow 
Trimbey  v.  Vignier,  it  was  on  the  express  ground  that  in  the  latter  case  the 
court  had  mistaken  the  Erench  law^  and  that  according  to  French  law  a  blank 
indorsement  acted  as  a  procuration,  that  is  to  say,  did  convey  a  right  to  sue, 
though  subject  to  the  equities  affecting  the  indorser  in  blank. 

On  the  other  hand,  in  Lebel  v.  Tucker,  L.  R.  3  Q.  B.  77,  it  was  held  that  in 
the  case  of  a  bill  of  exchange  drawn,  accepted,  and  payable  in  England,  the 
acceptor  was  liable  to  a  holder  after  indorsement  in  Ei'ance  under  similar 
circumstances  to  those  in  Trimbey  v.  Vignier :  though  the  court  assumed  the 
French  law  to  be  as  stated  in  Trimbey  v.  Vignier,  distinguishing  the  case  on 
the  ground  that  the  contract  of  the  English  acceptor  of  an  English  bill  must 
be  governed  by  English  law.  They  at  the  same  time  declined  to  express  any 
opinion  as  to  what  would  be  the  effect  of  such  an  indorsement  as  between 
the  indorser  and  any  subsequent  indorsee  in  an  action  against  the  indorser 
himself. 

The  case  of  Bvadlaugh  v.  De  Rin  {sup.)  was  intermediate  between  Trimbey 
V.  Vignier  and  Lehel  v.  Tucker.  In  the  report  of  the  case  in  tlie  Common 
Pleas  it  is  stated  both  in  the  report  and  in  the  judgment,  that  the  bills  sued 
upon  were  drawn  in  France:  see  L.  R.  3  C.  P.  538.  In  the  report  in  the 
Exchequer  Chamber  {sup.)  it  is  stated  that  they  were  drawn  in  Belgium;  but 
in  that  court,  as  in  the  court  below,  it  appears  to  have  been  assumed  that  the 
bills  were  in  their  inception  French  bills.  Th.ey  were  accepted  in  England, 
but  afterwards  indorsed  in  France  in  blank,  and  it  was  assumed  in  the  Court 
of  Common  Pleas  that  by  French  law  such  an  indorsement  was  insufficient 
to  give  the  holder  —  the  plaintiff — a  title  to  sue  the  acceptor  —  the  defend- 


948  MOSTVN    V.    lAlJKKJAS. 

ant.  The  majority  of  tlie  Court  of  Coimiioii  I'Uas.  (-onsi>tin<;  of  Hovill, 
C.  J.,  and  Willcs,  J.,  Ir-UI  that  uiidrr  siuli  circiimstancfs,  tin-  hills  hi-iiifj 
French  bills  in  their  inception,  the  obligations  of  the  acceptor  nlu^)t  be  deter- 
mined by  French  law.  Montafiue  Smith,  J.,  on  the  other  hunil,  lielil  tliat  tlie 
acceptance  havinj;:  l)een  in  Knirland  the  English  law  mnst  prevail.  The 
E.xciuquer  ("hainl)er,  without  impugning  the  correctness  of  the  decision 
below  in  i)oint  of  law,  reversed  the  judgment  on  the  ground  tiiat  nud  innttfr 
of  fart  l)y  French  law  the  indorsement  was  sutlicieiit. 

In  In  re  Mmseilh-s  Co.,  :J0  V\\.  1).  ."I'.IH,  bo  L.  J.  Ch.  lit!  (decided  since  the 
Bills  of  Kxciiange  Act,  18.s2,  but  without  reference  to  it.  presumably  in-cause 
the  bills  were  accepted  before  the  passing  f>f  the  .\ct),  it  was  held  l)y  Pearson, 
J.,  that  the  hohlers  of  a  bill  drawn  in  France  but  accepted  by  an  Kuglish 
company  in  England,  were  entitled  to  recover  against  such  acceptors  thougli 
the  indorsement  might  have  been  invalid  by  the  law  of  Fmnce  where  it  was 
made.  In  this  ca.se  the  learned  judge  laid  stress  npon  the  form  of  the  bill  as 
constituting  it  an  English  instrument.  Another  case  decided  on  the  subject 
before  the  I'.ills  of  E.xchange  Act.  1H,S2,  is  Allen  v.  Keuihle,  (J  Moo.  1'.  C.  :U.), 
in  which  case  Lord  Kingsdown  states  it  as  admitted  that  in  the  case  of  a  bill 
drawn  in  one  country  upon  a  ilrawee  in  amither,  "  tlie  tirawer  is  liable 
according  to  the  laws  of  the  country  where  the  bill  was  drawn,  and  not  of 
the  coimtry  upon  which  the  l)ill  was  drawn."  See  the  explanation,  however, 
of  this  case  by  C'ockburn,  C.  J.,  in  /koui/tntte  v.  Orennann,  L.  1{.  10  Q.  B.  at 
p.  540,  where  it  is  pointed  out  that  the  above  ilirdtni  was  unneces.sary  to  the 
decision  of  the  ca.se,  which  turned  upon  the  question  whether  the  defenilant 
in  a  Demerara  court  could  avail  himself  of  the  Demerara  law  as  to  set-otl',  a 
question  upon  which  the  h  jr  fori  nnist  prevail,  whatever  miirht  have  been  the 
law  governing  the  rontrnrt  of  the  drawer,  the  defendant  in  the  action.  See 
also  McF<irlnne  v.  Xorria,  31  L.  J.  t^.  B.  24.">.] 

In  Uihhs  V.  Fremont,  1)  Exch.  2."),  the  holder  of  a  dishonoured  l»ill  drawn  at 
Ciudad  de  los  Angeles  in  California  upon  Washington,  was  held  entitled  as 
against  the  drawer  to  Californian  interest. 

[In  Rouqiu'tte  v.  Orermann,  L.  U.  10  Q.  B.  (decitled  l>efore  the  Act  of  Iss'J). 
at  p.  536,  the  court  discuss  the  supposed  rule  "  tliat  although  the  obligations 
of  the  acceptor  may  be  determined  by  the  lex  loci  of  the  country  in  which  the 
bill  is  payable,  tlie  contract  as  between  the  drawer  and  indorsee  must  be 
construed  according  to  the  law  of  the  country  where  the  bill  was  drawn." 
"  It  is  unnecessary,"  .says  Cockburn,  C.  J.,  "  to  consider  how  far  this  position 
may  hold  good  as  to  matter  of  form,  or  stamp  objections,  or  illegality  of 
consideration,  or  the  like.  We  cannot  concur  in  it  as  applicable  to  the  sub- 
stance of  the  contract,  so  far  as  presentment  for  payment  is  concerned;  still 
less  to  a  formality  lequired  on  non-payment,  in  order  to  enable  the  hoUler  to 
have  recourse  to  an  antecedent  party  to  the  bill."  His  lordship  then  points 
out  that  the  party  transferring  a  bill  for  value  "engages  as  surety  for  the 
due  performance  by  the  acceptor  of  the  obligation  which  the  acceptor  takes 
on  himself  by  the  acceptance.  His  liability  therefore  is  to  be  measured  by 
that  of  the  acceptor  whose  surety  he  is,  and  as  the  obligations  of  the  acceptor 
are  to  be  determined  b_v  the  lex  loci  of  performance,  so  also  must  be  those  of 
the  surety."  The  effect  of  the  decision  is  that  the  court,  following  Roths- 
child V.  Carrie,  1  Q.  B.  43  (though  the  reasoning  of  the  court  in  that  case  has 
been  disapproved,  see  Home  v.  Rouqnette,  3  Q.  B.  D.  514),  and  Hirsrhfiehl  v. 
Smith,  L.  R.  1  C.  P.  340,  held  that  notice  of  dishonour  according  to  English 
law  was  not  necessary,  but  that  notice  according  to  French  law  v.as  sutlicieut 


MOSTYN   V.    FABRIGAS.  949 

to  charge  the  defendants  who  were  Manchester  merchants,  at  the  suit  of  the 
plaintiff,  an  Englisli  subject  carrying  on  business  in  London,  on  a  bill  drawn 
and  indorsed  to  the  plaintift'  by  the  defendants  in  England,  but  upon  and 
accepted  and  dishonoured  by  a  French  firm  at  Paris.  The  state  of  facts  was 
that  the  time  for  payment  of  the  bill  with  all  other  French  bills  was,  daring 
its  currency,  from  time  to  time  extended  by  the  French  Government  in  con- 
sequence of  national  complications,  and  the  Court  of  Queen's  Bench  held  that 
the  drawer  was  equally  with  the  acceptor  entitled  to  the  benefit  of  these 
extensions,  and  so  that  the  time  for  giving  notice  of  dishonour  only  arose 
when  the  acceptor  failed  to  fulfil  the  obligations  imposed  upon  him. 

Another  qualification  of  the  supposed  rule  (irrespective  of  the  Bills  of 
Exchange  Act,  1882)  that  the  liability  created  by  an  English  indorsement  is 
to  be  measured  simply  by  English  law,  is  to  be  found  in  Home  v.  Rrniquette, 
3  Q.  B.  D.  514.  In  that  case  a  bill  was  drawn  in  England  by  Bryant,  Foster, 
&  Co.,  on  Chasserot  in  Spain,  in  favour  of  the  defendant,  who  indorsed  it  in 
England  to  the  plaintifi".  The  plaintiff  wrote  his  name  on  the  back  and  for- 
warded it  to  one  Monforte,  in  Spain,  who  placed  it  to  his  credit  under  cir- 
cumstances which  the  majority  of  the  court  held  to  constitute  an  indorse- 
ment to  Monforte  in  Spain.  Monforte  indorsed  it  in  Spain  to  Clavero,  who 
indorsed  it  also  in  Spain  to  O'Connor  &  Sons.  On  presentment  by  them 
for  acceptance  the  bill  was  dishonoured.  Notice  of  dishonour  was  not  given 
to  the  plaintifi'  until  after  such  a  time  as  would  in  England  have  discharged 
him ;  but  it  was  proved  that  according  to  Spanish  law,  no  notice  of  dis- 
honour for  non-acceptance  Avas  required.  The  plaintifi'  when  he  did  receive 
notice  at  once  gave  notice  to  the  defendant,  and  paid  Monforte :  and  was 
held  by  the  Court  of  Appeal,  affirming  the  judgment  of  Lord  Coleridge, 
C.  J.,  to  be  entitled  to  recover  against  the  defendant.  The  court  concurred 
in  thinking  that  the  fact  of  the  bill  being  a  foreign  one  was  immaterial,  that 
the  liability  of  the  defendant  on  his  indorsement  in  England  was  governed  by 
English  law;  but  that  the  plaintiff,  being  liable  to  Monforte,  because,  accord- 
ing to  Spanish  law,  no  notice  of  dishonour  was  necessarj'  to  charge  the 
indorser,  was  entitled  in  his  turn  to  have  recourse  against  the  defendant. 

The  7-atio  decidendi  seems  to  be  that  a  defendant,  though  indorsing  in  Eng- 
land, and  whether  the  bill  be  foreign  or  English,  must  be  deemed  to  antic- 
ipate the  possibility  of  a  subsequent  foreign  indorsement,  and  to  undertake  to 
indemnify  his  indorsee  against  any  liability  he  may  incur  by  reason  of  such 
later  indorsement,  though  some  of  the  links  in  the  chain  of  indorsements 
subsequent  to  his  own  may  not  be  such  as  would  bind  the  defendant  if  the 
indorsement  had  been  English. 

The  ratio  decidendi  which  had  been  indicated  above  with  reference  to  Home 
V.  Rouquette,  or  one  founded  on  an  analogous  train  of  reasoning,  is  suggested 
by  Wills,  J.,  in  Lee  v.  Abdy,  17  Q.  B.  D.  809,  as  applicable  to  the  question 
of  the  liability  of  an  English  acceptor  upon  a  bill  indorsed  abroad,  and  as 
explaining  Lebel  v.  Tucker  and  Bradlaiigh  v.  De  Rin,  supra.  Qucere  whether 
the  learned  judge  in  suggesting  that  the  liability  of  the  acceptor  is  to  be 
measured  l)y  reference  to  what  he  must  have  contemplated  would  be  the 
probable  place  of  indorsement  gave  sufficient  weight  to  the  fact  that  in  Brad- 
laugh  V.  De  Ein  the  bill  was  treated  by  the  majority  of  the  court  below  as 
a  foreign  bill,  and  the  Court  of  Exchequer  Chamber,  though  they  do  not 
decide  the  point,  deal  with  the  case  ou  the  same  assumption.  The  bill  being 
treated  as  a  foreign  hill,  the  court  below  held  (and  the  Exchequer  Chamber 
did  not  impugn  that  position)  that  the  acceptor  Avould  be  liable  only  upon  an 


950  MOSTVN    V.    lAISIIUJAS. 

liulorsciuc-iit  cUcctiial  aiiaiiisl  llu-  ilrawer  by  tlif  law  of  tin-  placi-  i»f  l«suo. 
On  llii-  otlior  liaiui,  in  l.ihtl  v.  Tinker,  tin;  ))ill  lM-in;j  uii  Knylhli  I>1U,  tlie 
acceptor's  liability  was  licti-nnincd  only  by  Eni;lisli  law,  not  because  he  waa 
taken  to  have  conteniplatetl  ne>;otiation  in  Kn;;lanil  only,  but  l»ecause  tiiat 
was  the  law  of  the  place  of  his  contract.  In  /.(/■  v.  Alxlij,  uhi  supra,  a  Divis- 
ional Court  consisting;  of  Day  and  Wills.  ,1.1.,  held  that  to  an  action  on  a  life 
policy  ctlected  in  Knuland  by  tiie  assijiiiee  of  the  policy,  It  was  a  defence  lliat 
the  assignment,  thouj;h  valid  by  Knglish  law,  was  invalid  and  voiti  l)y  the  law 
of  Cape  Colony  where  the  assij^nnient  was  made,  and  wiiere  the  a.ssi;^uor 
and  assignee  were  domicileil. 

Tiie  court  considered  that  the  decision  In  Lfbt'l  v.  I'lnki  r  was  distiniiuish- 
able  as  l)eini;  on  the  liability  of  an  acceptor  of  a  l)ill  of  exchauLre  which  was 
ditltrcnt  from  that  of  the  defendants,  who  were  l)einy  sued  not  on  a  nego- 
tiable instrument,  i)iit  as  liable  under  a  policy  of  insurance. 

The  Hills  of  Exchange  Act,  1SS2  (4.">  &  4(;  Vict.  c.  fil),  s.  72.  proviilcs  a.s 
follows  :  — 

"  Where  a  bill  drawn  in  one  country  is  negotiated,  accepted,  or  payable  in 
another,  the  rights,  duties,  and  liabilities  of  the  parlies  thereto  are  determined 
as  follows :  — 

"(1.)  The  valiiiity  of  a  liill  as  regards  n'<|ui»itc-.  in  furni  is  dctcrinined  l)y 
the  law  of  the  jilace  of  Issue,  and  the  validity  as  regards  n-qnisites  in  form 
of  the  supervening  contracts,  sJich  as  acce|)tance,  or  indorsement,  or  accept- 
ance supra  protest,  is  deterniined  by  tin-  law  of  tlie  place  where  such  contract 
was  made. 

"  Provided  that:  — 

"  (a)  Where  a  bill  is  issued  out  of  tiic  Iniled  Kini,'dom  it  is  not  invalid  l)y 
reason  only  that  it  is  not  sta:npeil  in  accordance  witii  the  law  of  the  i)lace 
of  issue. 

"(b)  Where  a  Itill,  issued  out  of  the  I'nitcd  Kingilom,  conforms,  a.s 
regards  re«|uisites  in  form,  to  the  law  of  the  Inited  Kingdom,  it  nuiy,  for 
the  purpose  of  enforcing  payment  thereof,  be  treated  as  valid  as  between  all 
persons  who  negotiate,  hold,  or  l)ecome  parties  to  it  in  the  Tnited  Kingdom. 

"  (2.)  Subject  to  the  provisions  of  this  Act,  the  interpretation  of  the 
drawing,  imlorsement,  acceptance,  or  acceptance  supra  protest  of  a  bill,  is 
determined  by  the  law  of  the  place  where  such  contract  is  made. 

"  Provided  that  where  an  inland  bill  is  indorsed  in  a  foreign  country  the 
indorsement  shall,  as  regards  the  payer,  be  interpreted  according  to  the  law 
of  the  United  Kingdom. 

"  (3.)  The  duties  of  the  holder  with  respect  to  presentment  for  acceptance 
or  payment,  and  the  necessitj'  for  or  sulTiciency  of  a  protest  or  notice  of 
dishonour,  or  otherwise,  are  determined  by  the  law  of  the  place  where  the 
act  is  done  or  the  bill  is  dishonouretl. 

"  (4.)  Where  a  bill  is  drawn  out  of  but  payable  in  the  United  Kingdom  and 
the  sum  payable  is  not  expressed  in  the  cnrrency  of  the  United  Kingdom, 
the  amount  shall,  in  the  absence  of  some  express  stipulation,  be  calculated 
according  to  the  rate  of  exchange  for  sight  drafts  at  the  place  of  payment 
on  the  day  the  bill  is  payable. 

"  (5.)  Where  a  bill  is  drawn  in  one  country  and  is  payable  in  another,  the 
due  date  thereof  is  determined  according  to  the  law  of  the  place  where  it  is 
payable." 

The  wording  of  the  Act,  however,  is  not  (luite  clear,  and  by  s.  07,  s\il)-s.  2, 
it  is  provided  that  "  the  rules  of  Common  Law,  including  the  Law  Merchant, 


MOSTYN   V.    FABRIGAS.  951 

save  in  so  far  as  they  are  inconsistent  with  the  express  provisions  of  this 
Act,  shall  continne  to  apply  to  bills  of  exchange,  promissory  notes,  and 
cheques."] 

"  The  rule,"  said  Tindal,  C.  J.,  delivering  judgment  in  the  case  of  Trimbey 
V.  Vignier,  1  Bing.  N.  C.  151,  "  which  applies  to  the  case  of  contracts  made 
in  one  country,  and  put  in  suit  in  the  courts  of  law  of  another  country, 
appears  to  be  this,  that  the  interpretation  of  the  contract  must  be  governed 
by  the  law  of  the  country  where  the  contract  was  made  :  the  mode  of  suing, 
and  the  time  within  which  the  action  must  be  brought,  must  be  governed  by 
the  law  of  the  country  where  the  action  is  brought." 

This  distinction  was  acted  on  in  The  British  Linen  Company  v.  Dntmmond, 
10  B.  &  C.  903,  where  it  was  held  that  the  English  statute  of  limitations  was 
a  good  plea  to  an  action  on  a  Scotch  contract  which  might  in  Scotland  have 
been  put  in  suit  at  any  time  within  forty  years ;  in  De  la  Vega  v.  Vianna,  1  B. 
&  Ad.  284,  where  the  defendant  Avas  allowed  to  be  arrested  for  a  debt  con- 
tracted in  Portugal,  and  for  which  he  could  not  have  been  arrested  there ;  in 
Alivon  and  another  (provisional  syndics  of  the  estate  of  Beauvain,  a  bank- 
rupt) V.  Furniral,  4  Tyrw.  751,  where  the  Court  of  Exchequer  acted  on  the 
French  law  of  bankruptcy;  and  in  Huber  v.  Steiner,  2  Bing.  N.  C.  202,  in 
which  the  whole  difficulty  was  in  ascertaining  whether  the  rule  of  foreign 
law  applied  ad  valorum  contractus,  or  ad  modurn  actionis  instituendcK. 

It  was  an  action  on  a  promissory  note;  and  the  question  was,  whether 
the  French  law  of  prescription  formed  a  defence  thereto,  the  action  being 
brought  within  the  English  period  of  limitation.  On  behalf  of  the  defendant 
it  was  contended  that  laws  for  the  limitation  of  suits  were  of  two  kinds, 
those  which  bar  the  remedy,  and  those  which  extinguish  the  debt;  and  the 
following  passage  was  cited  [at  p.  211]  from  Story's  Commentaries  on  the 
Conflict  of  Laws:  — "Where  the  statutes  of  limitation  of  a  particular 
country  not  only  extinguish  the  right  of  action,  but  the  claim  or  title  itself 
ipso  facto,  and  declare  it  a  nullity  after  the  lapse  of  the  prescribed  period,  in 
such  a  case  the  statute  may  be  set  up,  in  any  other  country  to  which  tho 
parties  remove,  by  way  of  extinguishment."  "  This  distinction,"  said  Tindal, 
C.  J.,  delivering  judgment,  "  when  taken  with  the  qualification  annexed  to  it 
by  the  author  himself,  appears  to  be  well  founded.  That  qualification  is, 
'  that  the  parties  are  resident  within  the  jurisdiction  during  all  that  period, 
so  that  it  has  actually  operated  upon  the  case; '  and  with  such  restriction, 
it  does  indeed  appear  but  reasonable,  that  the  part  of  the  lex  loci  contractus, 
which  declares  the  contract  to  be  absolutely  void  at  a  certain  limited  time, 
without  any  intervening  suit,  should  be  equally  regarded  in  the  foreign 
country,  as  the  part  of  the  lex  loci  contractus,  which  gives  life  to  and  regu- 
lates the  construction  of  the  contract;  both  parts  go  equally  ad  valorem 
contractus,  both  ad  decisionem  litis."  However,  the  court,  upon  examination 
of  the  French  law  of  prescription,  thought  that  its  effect  was  not  to  extin- 
guish the  right,  but,  as  in  England,  only  to  bar  the  remedy,  and  therefore 
that  the  defence  was  in  that  case  unavailable.  [See  also  MacFarlane  v.  Norris, 
2  B.  &  S.  783;  Flarris  v.  Qidne,  L.  R.  4  Q.  B.  653,  38  L.  J.  Q.  B-  331;  Pardo 
V.  Bingham,  L.  R.  4  Ch.  735,  89  L.  J.  Ch.  170;  Alliance  Bank  of  Simla  v. 
Carey',  o  C.  P.  1).  429.] 

Supposing  the  law  of  a  foreign  country  to  be,  that  a  contract  is,  after  a 
certain  time,  to  be  deemed  ahsolutely  extinguished,  it  seems  not  quite  reason- 
able to  say  that  the  removal  of  the  parties  out  of  the  jurisdiction,  while 
that  time  is  running,  should  authorise  the  courts  of  this  country  to  consider 


9.VJ  MOSTVN    \.    FAlUtlCAH. 

it  in  cssr  aftiT  llio  piTiod  pn-Ilxcd.  'I'lu'  aiitliuritifs  rstul)li>li,  tliai  the  law 
of  tlie  country  whcrt'  tlu'  contract  is  made  must  ;;ovcrn  it,  and  must  l>i- looked 
on  as  impru'tlly  iucori)orulcd  with  it.  Now,  if  the  contract  liad  containctl 
a]>r(>cis()  tliat  it  should  l)c'  ai)solutcly  void  if  not  enforced  witldn  a  certain 
time,  no  dt>ul)t  the  Ku<;lisli  courts  would  hold  it  void  after  the  expiration  of 
that  time.  But  what  ditference  can  it  make  that  such  pmriso  Is  implied  from 
the  law  of  the  country  where  the  contract  was  made  instead  of  hein^  ex- 
pressed in  terms?  Is  it  not  in  botli  cases  equally  part  of  the  contract?  If, 
indeed,  the  rule  of  the  foreign  law  be,  that  the  contract  shall,  after  the  lapse 
of  a  certain  time,  l)ecome  void,  provided  that  the  parties  to  it  continue  to 
reside  all  that  time  in  the  same  country,  the  arrival  of  the  perioil  prefixed  or 
its  avoidance  will  depend  on  the  contiu'reucy  of  their  ai)staiidn;r  from  absent- 
\n<^  tliemselves;  and,  if  they  leave  the  country,  never  will  arrive  at  all;  and 
this  is,  jx-rhaps,  what  Judye  Story  intends  l)y  the  words  '•  that  the  parties  are 
resident  within  the  jurisdiction  durinj;  all  that  period,  so  tftut  it  Iihk  nrtuitlly 
operntrd  upon  the  rtisc"  For  if  the  law  be  so  frametl  as  to  opiTate  upon  the 
case  without  such  residence,  the  (|ualitlcation  appears  to  be  inapplicable  [but 
sec  per  Lord  liroui^ham,  Don  v.  Lippmnnn,  .'>  CI.  &  Fin.  1,  IG. 

The  Knylish  statute  of  limitations  does  not  apply  to  charges  on  real  estate 
sitmvte  abroad,  as  to  which  the  lex  loci  rei  sitir  is  the  law  applical)le.  Pitt  v. 
iJnrre,  ^^  Ch.  I).  2[K>.] 

In  Lopez  V.  linrslem,  4  .Moore  ( I'rivy  <"ouiull).  .'JOO,  tin-  same  law  was  acted 
upon  with  reference  to  the  limitation  of  time  |)rescribed  for  liriniiiny  an 
ai)i)»'al  after  condemnation  by  a  vice-admiralty  court  under  tlu-  Slave  Trade 
Abolition  Ait.  .".  (i.  I,  c.  11:'..  II  was  contended  in  tliat  case  that  the  owners 
of  the  car;;o  were  not  bound  by  the  enactment,  beinij  forei^jners ;  l)ut  the 
court,  admittins:  that  the  British  parlianjent  certainly  has  no  {reneral  power 
to  le,i;islate  for  foreiijners  out  of  the  dominions  and  beyond  the  juri.sdiction 
of  the  British  Crown,  held  that  a  British  statute  nniy  llx  a  time  within  which 
application  nnist  be  made  for  redress  to  the  tril)unals  of  the  emi)ire:  "on 
matter  of  procedure,"  they  said,  "all  mankind,  whether  aliens  or  liejje  sub- 
jects, plaintitl's  or  defendants,  appellants  or  respondents,  are  l)ound  by  the 
law  of  tin:  fo nun,"  and  "  (/'  (i  l(i>e  leere  mude  upon  tliia  suhjer.t  icorkimj  oppns- 
sion  and  injuatire  to  the  suhjectx  of  o  foreiijn  sttife,  that  state  might  make 
representations  and  remonstrances  against  this  law  to  (jur  government ;  Ijut 
while  it  remains  in  force,  judges  have  no  choice  but  to  give  it  effect."  See 
further  Ileriz  v.  Riera,  11  Sim.  318;  Cooper  v.  Lord  Waldeyrave,  2  Beav.  282; 
Beuuce  v.  Muter,  5  Moore  (Privy  Council),  (j9;  Fertjuson  v.  Fi/ffe,  8  CI.  &  Fin. 
121 ;  Leslie  v.  Baillie,  2  You.  &  Coll.  C.  C.  91 ;  [Cope  v.  Doherty,  4  Kay  &  J. 
3r.7,  atlirmed  2  l)e  G.  &  J.  G14;  Jar/o  v.  Graham,  32  L.  J.  Adm.  49;  The  Wild 
Ramjer,  32  L.  J.  Adm.  49. 

In  the  recent  case  of  Ellis  v.  M' Henry,  L.  R.  (J  C.  P.  228,  40  L.  J.  C.  P.  109, 
the  decisions  as  to  what  amounts  to  a  discharge  of  a  foreign  cau.se  of  action 
ai"e  elaborately  reviewed.  In  that  case  it  was  held  that  a  discharge  by  an 
English  composition  deed  was  binding  in  Canada,  and  also  was  clearly  bind- 
ing and  effectual  as  an  answer  to  proceedings  commenced  in  this  country  on 
a  Canadian  cause  of  action ;  but  further,  that  no  advantage  could  be  taken 
of  such  a  discharge  as  an  answer  to  an  action  on  a  judgment  obtained  in  a 
Canadian  Court,  where  such  discharge  might  have  but  had  not  lieen  pleaded. 
In  giving  judgment,  Bovill,  C.  J.,  lavs  doAvn  the  three  following  very  impor- 
tant propositions:  —  "In  the  first  place,  there  is  no  doubt  that  a  debt  or 
liability  arising  in  any  country  may  be  di.-schargcd  by  tlie  laws  of  that  country. 


MOSTYN    V.    FABRIGAS.  953 

and  that  such  a  discharire,  if  it  extinguishes  the  debt  or  liability,  and  does 
not  merely  interfere  Avitli  the  remedies  or  course  of  procedure  to  enforce  it, 
■will  be  an  efl'ectual  answer  to  the  claim,  not  only  in  the  courts  of  that 
country,  but  in  every  other  country.  Secondly,  as  a  general  proposition, 
it  is  also  true  that  the  discharge  of  a  debt  or  liability  by  the  law  of  a  country 
other  than  that  in  which  the  debt  ai'ises,  does  not  relieve  the  debtor  in  any 
other  country.  Thirdly,  where  the  discharge  is  created  by  the  legislature  or 
laws  of  a  country  which  has  a  paramount  jurisdiction  over  another  country 
in  which  the  debt  or  liability  arose,  or  by  the  legislature  or  laws  which  govern 
the  tribunal  in  Avhich  the  question  is  to  be  decided,  such  a  discharge  may  be 
effectual  in  both  countries  in  the  one  case,  or  in  proceedings  before  the 
tribunal  in  the  other  case."  See  also  PhilUps  v.  Eyre,  L.  R.  6  Q.  B.  1,  and 
ex  parte  Pascal,  1  Ch.  D.  .509,  4.5  L.  J.  Bank.  81.] 

Another  application  of  the  rule  that  procedure  is  to  be  governed  by  the 
law  of  the  country  in  wliich  the  action  is  brought,  may  be  found  in  the  judg- 
ment of  the  Court  of  Exchequer,  in  the  case  of  the  General  Steam  Naviga- 
tion Company  v.  Guilloii,  11  M.  &  W.  877.  The  action  was  on  the  case  for 
running  down  a  ship  at  sea ;  one  of  the  defendant's  pleas  stated  that  he  was 
a  Frenchman,  and  that  the  injury  complained  of  was  committed  on  the  high 
seas,  out  of  the  jurisdiction  of  the  Queen  of  England,  not  by  the  defendant 
personally,  but  by  the  master  of  a  French  vessel  in  the  employ  of  a  French 
company,  of  Avhich  the  defendant  was  a  shareholder  and  acting  director;  that 
the  defendant  never  was  possessed  of,  or  interested  in,  the  vessel  which  did 
the  injury,  otherAvise  than  as  such  shareholder,  and  that  by  the  law  of  France 
he  was  not  responsible  for  or  liable  to  be  sued  or  impleaded  individually,  or 
in  his  own  name  or  person  in  any  manner  Avhatsoever,  but  that  by  that  law 
the  company  alone,  by  their  style  or  title,  or  the  master  or  person  in  command 
for  the  time  being  of  the  vessel,  was  responsible  for  and  liable  to  be  sued  or 
impleaded,  and  that  the  defendant  was  not  the  master  or  person  in  command. 
Upon  the  grammatical  construction  of  that  plea,  the  Coui't  of  Exchequer 
were  divided  in  opinion,  but  they  agreed  that  if  the  plea  were  taken  (accord- 
ing to  the  consti'uction  put  upon  it  by  Parke,  B.,  and  Gurnej',  B.),  to  aver 
that  by  the  law  of  France  the  defendant  was  "  not  liable  for  the  acts  of  the 
master;  but  that  a  body  established  by  the  French  law,  and  analogous  to  an 
English  corporation,  were  the  proprietors  of  the  vessel,  and  alone  liable  for 
the  acts  of  the  master  who  w^as  their  servant  and  not  the  servant  of  the 
individuals  composing  that  body ;  "  there  was  (as  they  were  all  strongly 
inclined  to  think)  a  good  defence  to  the  action ;  but  that  if,  on  the  other 
hand,  the  plea  were  taken  (according  to  the  view  of  Lord  Abinger  and 
Alderson,  B.)  to  mean,  "  that  in  the  French  courts  the  mode  of  proceeding 
would  be  to  sue  the  defendant  jointly  with  the  other  shareliolders  under  the 
name  of  their  association;"  then  that  it  was  bad  on  the  ground  that  '•  the 
forms  of  remedies  and  modes  of  proceeding  are  regulated  solely  by  the  law 
of  the  place  where  the  action  is  instituted,  the  lex  fori ;  and  it  is  no  objection 
to  a  suit  instituted  in  proper  form  here,  that  it  would  have  been  instituted  in 
a  different  form  in  the  court  of  the  country  where  the  cause  of  action  arose, 
or  to  which  the  defendant  belongs." 

So  where  a  colonial  act  gave  a  mode  of  proceeding  against  a  banking 
company  by  suing  their  chairman,  and  provided  a  particular  mode  of  pro- 
ceeding upon  that  judgment,  against  members  for  the  time  being,  it  was 
considered  that  tlie  members  might,  even  in  respect  of  a  cause  of  action  which 
arose  in  the  colony,  be  sued  in  England  either  for  the  original  debt  or  upon 


954  MOSTYN  V.   I  aiu:1(;as. 

the  jndfiment.  Bank  nf  Austrcthtsin  v.  J/unUnfj,  [D  < '.  IJ.  •;•;!]  ;  I'.t  L.  .1.  'M.'>; 
Jiiiuk  of  Aus(raJasia  v.  Ai<(s,  1(!  Q.  B.  117;  [h'flmlt  v.  Mamliiill,  1  C.  H.  N.  S. 
241  ;    }'anytteli)i  v.  Jinunnl,  'Sd  L.  J.  ('.  1*.  7'J. 

And  in  Jiullork  v.  O/nv/,  L.  R.  10  Q.  IJ.  27t;.  J I  L.  .1.  Q.  IJ  121,  wliidi  was  tin 
:i<tinn  on  a  contract,  a  |)lea  was  lit-ld  l)ad  wliicli  alk-ned  tliat  the  contract  wiw 
nnide  by  the  |)hiintitf,  in  Scotlanil,  witii  a  Scotdi  Ilrni,  anil  was  to  be  jkt- 
formed  wholly  in  Scotland,  and  that  by  Scotch  law  it  was  a  condition  prc<-o- 
dent  to  the  individual  liability  of  the  defenilant  as  a  niuniber  of  the  linn,  that 
the  llrni,  or  the  whole  of  the  partners  jointly,  should  first  liave  been  sued. 
The  Court  of  Queen's  Bench  lield  that,  in  an  Knfjllsli  Court,  non-joinder  nf 
tlie  otlier  parties  was  merely  uround  for  a  i)lea  in  abatement,  not  for  one 
in  bar,  that  tiie  matters  alleijed  in  the  i»lra  were  nun-  matter  t)f  proci-dure, 
and  that  tlie  plea  was  bad. 

In  Cojiin  V.  ^UUdti.^iin,  1  Ex.  1).  17,  J.j  L.  J.  E.\.  l.'j,  the  defendant  was  a 
shareholder  in  a  French  company,  the  statutes  and  provisions  of  which  i)ro- 
vided  that,  in  case  of  litiu;ation  between  a  shareholder  and  tlie  rest  of  tlie 
company,  the  shareholder's  domicile  should  be  in  Paris,  and  that  in  default 
thereof  service  at  a  public  otllce  should  be  good.  In  the  action,  which  was 
on  a  French  judgment,  the  above  facts,  tojjether  with  the  allej;jation  that  by 
French  law  the  tlefendant  was  bound  by  the  company's  statutes,  were  held  a 
good  answer  to  a  plea  that  the  defendant  was  not  domiciled  within  the  juris- 
diction of  France,  nor  a  native  of  France,  nor  served  with  i)rocess  within  the 
French  jurisdiction  duriiii;  the  orii^inal  French  suit. 

A  plea  to  an  acti«)U  for  an  assault  that  it  was  commit ttil  in  a  forcii^n  coun- 
try, where  damaji;es  are  not  recoverable  in  respect  of  it  until  <ertain  i)eual 
proceedings  have  been  commenced  and  determined  there,  goes  only  to  pro- 
cedure:  Scott  V.  Lord  iSet/mour,  1  II.  &  C.  219. 

On  the  same  principle  the  Master  of  the  Rolls  refused  to  give  priority  in  an 
administration  suit  in  this  country  to  the  claim  of  a  foreign  creditor,  although 
the  debt,  which  had  been  contracted  in  Venezuela,  hail  been  registered,  so  as 
to  acq.iire,  according  to  the  law  of  that  country,  a  priority  in  the  distribution 
of  the  assets:  Parda  v.  Bimjhrtm,  L.  K.  (J  Va\.  485.  And  so  in  Ex  pnrtt'  Mel- 
botirn,  L.  11.  G  Ch.  G4,  40  L.  J.  Bank.  05,  a  wife  was  allowed  to  prove  against 
the  estate  of  her  husband,  under  an  English  bankruptcy,  as  a  creditor  in 
respect  of  a  marriage  contract  pari pesifu  with  the  other  creditors;  although, 
by  the  law  of  Batavia,  where  the  contract  was  made,  it  would  have  had,  for 
want  of  registration,  no  ett'ect  with  regard  to  third  parties :  the  court  holding 
that  the  effect  of  this  law  was  only  to  give  the  other  creditors  priority  over 
the  Avife,  and  that  all  questions  of  priority  must  be  determined  by  the  lex 
fori.-] 

In  Brnicn  v.  Thornton,  6  .V.  ^!l  E.  185,  a  charter-party  was  entered  into  at 
Batavia.  According  to  the  law  prevailing  there,  such  instruments  are  entered 
in  a  pul)lic  book,  Avhich  is  the  only  evidence  of  their  contents  in  that  colony; 
a  public  notary  makes  two  copies  from  the  book,  and  delivers  one  to  each 
party,  and  these  are  evidence  of  the  original  in  all  Dutch  courts  except 
Batavia.  Held,  that  such  copies  are  not  evidence  of  the  original  in  this  coun- 
try. The  courts  here  will  not  adopt  rules  of  evidence  from  foreign  courts. 
Appleton  V.  Lord  Brayhrook,  2  Stark.  G,  G  M.  &  S.  34;  Black  v.  Lord  Bray- 
brook,  2  Stark.  7,  G  M.  &  S.  39;  [see  Abbott  v.  Abbott,  29  L.  J.  Matrim.  Cases, 
29;  Bain  v.   Whitehaven  Eh/.  Co.,  3  H.  &  C.  1.] 

In  the  case  of  Tulloch  v.  Hartley,  1  You.  &  Coll.  C  C.  114,  the  A^ice-Chan- 
cellor  Knight-Bruce  is  supposed  to  have  departed   from   this  rule,  on  the 


MOSTYX   V.    FABE-IGAS.  955 

ground  that  the  property  in  litigation  was  real  property ;  but  his  liouour  does 
not  appear  to  have  intended  to  lay  down  any  exception  to  the  rule  so  wide  as 
the  alleged  ground  of  his  decision  might  suggest.  See  Yates  v.  Thomson, 
3  CI.  &  Fin.  544. 

[In  Ilkks  V.  Powell,  L.  R.  4  Ch.  741,  the  court  declined  to  enforce  an  un- 
registered charge  on  real  estate  in  India,  an  Indian  statute  having  enacted 
that  no  such  charge  on  real  estate  in  that  country  should,  unless  duly  regis- 
tered, "be  received  in  evidence  in  any  civil  proceeding  in  any  court,  or  be 
acted  on  by  any  public  officer ;  "  the  Lord  Chancellor  Hatherley  holding  that 
"it  would  be  a  narrow  construction,  regard  being  had  to  the  whole  Act,  to 
say  that  the  above  provision  related  simply  to  the  question  of  evidence." 

But  where  to  an  action  on  a  bottomry  bond  it  was  pleaded  that  the  bond 
was  bad  because  the  master  had  omitted  to  communicate  with  the  cargo 
owner  before  hypothecating  the  cargo,  the  C.  A.  held  that  the  necessity  im- 
posed by  English  law  for  doing  so  was  not  merely  evidence  so  as  to  be  mat- 
ter of  procedure.  "  The  manner  of  proving  facts,"  says  Lord  Esher,  M.  E., 
"  is  matter  of  evidence  and  to  my  mind  is  matter  of  procedure,  but  the  facts 
to  be  proved  are  not  matters  of  procedure ;  they  are  the  matters  with  which 
the  procedure  has  to  deal."     The  Gaetano  and  Maria,  7  P.  D.  at  p.  144. 

The  provisions  of  the  4th  section  of  the  Statute  of  Frauds  have  been  held 
only  to  affect  the  procedure  on  contracts  ;  therefore  a  contract  made  between  a 
British  and  a  French  subject  in  France,  and  to  be  performed  there,  was  held 
to  be  unenforceable  here,  because  it  was  not  to  be  performed  within  a  year 
from  the  making  of  it,  and  was  not  in  writing.  Leronx  v.  Brown,  12  C.  B. 
801.  See,  hoAvever,  the  judgment  in  Williams  v.  Wieeler,  8  C.  B.  N.  S.  316, 
and  in  Gibson  v.  Holland,  L.'  R.  1  C.  P.  8 ;  also  the  judgment  of  the  Exch. 
Cha.  in  Lloyd  Y.  Guibert,  L.  R.  1  Q.  B.  115;  and  per  Field,  J.,  in  Baioley  v. 
Baioley,  1  Q.  B.  D.  461,  45  L.  J.  Q.  B.  675,  and  Adams  v.  Chitterbuck,  10  Q.  B. 
D.  403, '52  L.  J.  Q.  B.  G09. 

In  the  last  case  it  was  held  by  Cave,  J.,  to  be  no  defence  to  an  action  m 
Eno;land  on  an  agreement  of  tenancy  of  a  house  and  shootings  in  Scotland 
that  the  agreement  was  not  under  seal :  the  provision  of  English  law  to  that 
effect  not  being  matter  of  procedure  so  as  to  be  applied  as  lex  fon,  and  there 
being  no  such  provision  in  the  law  of  Scotland. 

In  the  judgment  in  the  principal  case  it  is  stated  {ante,  p.  647),  that  "  the 
way  of  knowing  foreign  laws  is  by  admitting  them  to  be  proved  as  facts." 
See  on  this  point,  Bradlaugh  v.  De  Bin,  L.  R.  5  C.  P.  473;  Orr-Ewing  v.  Orr- 
Ewing,  22  Ch.  D.  at  p.  465,  per  Jessel,  M.  R.  The  cases  are  not  altogether 
consistent  as  to  how  far  it  is  necessary  that  the  evidence  should  be  that  of 
experts,  with  actual  experience  of  practice  in  the  foreign  courts.  See  The 
Sussex  Peerage  Case,  (11  C.  &  F.  85,)  where  the  evidence  of  Cardinal  Wise- 
man was  admitted  as  to  the  matrimonial  law  of  Rome,  and  Van  der  Donckt  v. 
Thellusson,  (8  C.  B.  812)  ;  but,  contra,  see  Bristowe  v.  Seqnerville,  5  Ex.  275,  a 
decision  wliich  has  been  recently  followed  by  Sir  James  Hannen  in  In  the 
Goods  of  Bonelli,  1  P.  T).  69,  refusing  to  admit  the  evidence  as  to  Italian  law 
of  a  Mr.  John  Reeve,  who  described  himself  as  a  certified  special  pleader,  and 
as  familiar  with  Italian  law;  and  again  in  Cartwright  v.  Cartwright,  26  W.  R. 
684,  where  the  evidence  of  an  English  counsel  as  to  Canadian  law  was  simi- 
larly rejected. 

By  tlie  24  Vict.  c.  11,  superior  courts  of  law  may  for  the  purpose  of 
ascertaining  the  law  of  a  foreign  state,  send  a  case  to  a  court  of  that 
state. 


956  MosTVN   \'.   i'ai;i:i(;as. 

In  the  absence  of  proof  to  tin-  iniitrary,  fi>r(ii;ii  l;i\v  is  |)rfsiiiiifi|  to  \u-  tlic 
same  as  our  own. 

As  to  when  it  may  be  a  i^rouiid  for  a  stay  of  proc«'i'iliiii;s  in  iin  action  hepj 
that  anotlier  action  l)y  tin-  plaiiilill'  aj^ainst  the  dcfenilant  for  tlie  same  cause 
was  pendinj;  abroad,  see  Mrllfunj  v.  Leiris,  22  Ch.  1).  307,  ">2  L.  J.  Cli.  :12.'>; 
Norton  v.  Florence  Land  Co.,  7  C\\.  D.  ;5;52 ;  /'frnrinn  diKinn  Cimiji'tnij  v.  liock- 
woldt,  23  Ch.  D.  225;  Ilyman  v.  //</m,  LM  Cli.  I).  r,M  ;  'I'hf  ('liristianshor<j,  10 
P.  I).  141.] 

The  dictum  attributed  to  Lord  MansiUld,  in  Moxii/n  v.  l-'iO>riij<is,  and-,  i'A't, 
viz.,  "  Tlie  •governor  is  in  tiie  nature  of  a  rircroij,  and  tlicrcfori'  h)cally,  <lurin}; 
his  {lovernment,  no  civil  or  criminal  action  will  lie  ai;ainst  him  :  the  reason  is, 
because  upon  process  he  would  be  subject  to  im!)risomnent,"  was  dissented 
from  by  the  .lutlicial  Committee  of  the  Privy  Council  in  tlie  case  of  /////  v. 
Bi<jije,'i  Moore  (Privy  Council),  4t;r>;  and  Lord  Broui^ham  suir^iested,  that 
the  expressions  used  by  Lord  Manstlelil  may  have  been  somewhat  altered  in 
the  report.  In  Hill  v.  nitj(jp,  to  an  action  of  debt  l)rou,iilit  in  a  colonial  court 
ajjainst  the  fjovernor,  a  plea  stating  his  vicerejjal  cliaracter  was  held  to  attbrd 
no  defence;  but  Lord  IJronjjham,  advertinj;  to  the  inconvenience  sugyjested 
by  Lord  Manslleld,  said,  in  ^ivin;^  the  jud;rmentof  the  court,  "  It  is  not  at  all 
necessary  that  in  holdin;;  a  ;;overnor  liable  to  l)e  sued  we  should  hold  his  per- 
son liable  to  arrest  while  on  service;  that  is.  while  resident  in  his  govern- 
ment. It  is  not  even  necessary  that  we  shoidd  meet  the  sufji^estion  of  his 
goods  in  all  circumstances  l)einix  Habli-  to  Ik-  taken  in  execution  —  thoui;h 
that  is  liable  to  a  ilillerent  consitleralion." 

[In  the  important  case  of  Lulnj  v.  Wmlrhousf,  17  Irish  ('.  L.  Kep.  tJ18,  It 
was  decided  that  the  Lord  Lieutenant  of  Ireland  was  not  liaiile  to  be  sued  in 
an  Irish  court  of  law  for  an  allesjed  tortious  act  done  by  him  in  his  viceroy's 
capacity :  and  on  the  motion  of  the  Attorney-General  for  Ireland,  the  Court, 
upon  allidavits,  and  relying;  on  the  authority  of  the  principal  case,  directed 
that  a  writ  issued  against  the  Lord  Lieutenant  in  resi)ect  of  such  an  allejjced 
act  should  be  suunnarily  taken  off  the  llle,  without  pnttim;  him  to  plead  such 
defence.  The  editors  are  informed  that  this  case  has  been  recently  acted 
upon  by  the  EniLjlish  law  oflicers. 

With  regard  to  the  rights  and  liability  of  sovereign  princes  themselves  to 
sue  and  be  sued  in  the  courts  of  this  country,  the  general  rule  dedueible  from 
the  cases  seems  to  be  that  in  respect  of  acts  of  state  they  can  neither  sue  nor 
be  sued.  Personally,  foreign  .sovereigns  cannot  be  sued  af  all,  and  though  it 
has  been  held  that  in  some  cases  proceedings  in  rem  may  be  instituted  against 
their  property  in  this  country  (The  Charkieh,  L.  R.  4  .V.  «&  E.  100,  42  L.  J. 
Adm.  17),  the  di<-ta  to  this  etlect  have  been  overruled  in  the  Court  of  Appeal, 
The  Parlement  Beh/e,  5  P.  D.  197.  In  certain  cases  a  petition  of  right  may 
be  instituted  by  a  British  subject  against  the  Crown;  "  but  it  seems  clear  to 
us,"  says  Lord  Coleridge,  C.  J.,  delivering  the  judgment  of  the  Court  of 
Appeal,  in  Rustomjee  v.  The  Queen,  2  Q.  B.  D.  G9,  4G  L.  J.  Q.  B.  238,  "  that 
in  all  that  relates  to  the  making  and  performance  of  a  treaty  with  another 
sovereign,  the  Crown  is  not  and  cannot  be  either  a  trustee  or  an  agent  for 
any  subject  whatever.  The  duty,"  his  lordship  adds,  of  the  English  sover- 
eign in  such  a  case  "  w-as  a  duty  to  do  justice  to  her  subjects,  according  to 
the  advice  of  her  responsible  ministers ;  not  the  cUity  of  an  agent  to  a  princi- 
pal, or  of  a  trustee  to  a  cestui  que  trust.  If  there  has  been  a  failure  to  perform 
that  duty,  which  we  only  suggest  for  the  sake  of  argument,  it  is  one  which 
Parliament  can  and  will  correct  —  not  one  witli  wliich  the  Courts  of  Law 
can  deal."] 


MOSTYN   V.    FABRIGAS.  957 

The  liability  of  sovereign  princes  to  be  sued  in  the  courts  of  foreign 
countries  underwent  a  full  discussion  in  the  very  remarkable  case  of  the  Duke 
of  Brunswick  v.  The  King  of  Hanover,  G  Beav.  1,  Avhere  the  defendant  was  at 
once  a  king  of  one  country  and  a  subject  of  that  in  which  he  was  sued. 
Lord  Langdalc,  ]\I.  R.,  in  a  judgment  which  exhausts  the  subject,  stated  his 
opinion:  1.  That  the  King  of  Hanover  was  "exempt  from  all  liability  of 
being  sued  in  the  courts  of  this  country  for  any  acts  done  by  him  as  King  of 
Hanover,  or  in  his  character  of  sovereign  prince; "  but  that,  "  being  a  sub- 
ject of  the  Queen,"  he  was  "  liable  to  be  sued  in  the  courts  of  this  country 
in  respect  of  any  acts  and  transactions  done  by  him,  or  in  which  he  may  have 
been  engaged,  as  such  subject."  2.  That  "  in  respect  of  any  act  done  out  of 
this  realm,  or  any  act  as  to  which  it  may  be  doubtful  whether  it  ought  to  be 
attributed  to  the  character  of  sovereign  or  to  the  character  of  subject,  it 
ought  to  be  presumed  to  l)e  attributable  rather  to  the  character  of  sovereign 
than  to  the  character  of  suljject."  3.  That  in  a  suit  in  the  Court  of  Chancery 
against  a  sovereign  prince  who  is  also  a  subject,  "the  bill  ought  upon  the 
face  of  it  to  show  that  the  subject-matter  of  it  constitutes  a  case  in  which  a 
sovereign  prince  is  liable  to  be  sued  as  a  subject."  And  the  decree  of  the 
Master  of  the  Rolls,  allowing  the  demurrer  in  that  case  to  a  bill  seeking  an 
account  against  the  King  of  Hanover  as  guardian  of  the  plaintiff",  to  which 
office  the  king,  upon  his  attaining  the  throne  of  Hanover,  had  been  appointed 
under  an  arrangement  springing  out  of  the  deposition  of  the  duke  pursuant 
to  a  decree  of  the  Germanic  Diet  in  1830,  was  affirmed  by  the  House  of  Lords 
on  appeal  (2  House  of  Lords  Cases,  1),  on  the  ground  that  a  sovereign  is  not 
liable  to  be  sued  in  respect  of  matters  of  state. 

In  the  case  of  the  Nabob  of  Arcot  v.  East  India  Company,  3  Br.  C.  C.  291, 
4  Br.  C.  C.  180,  2  Ves.  J.  56,  see  Beames,  El.  PI.  73,  the  Court  of  Chancery 
refused  to  entertain  a  suit  arising  out  of  transactions  of  state  between 
soA'ereign  powers,  though  the  defendants  were  subjects  of  this  country. 

In  Munden  v.  Tlie  Duke  of  Briinswick,  10  Q.  B.  656,  it  was  considered  to  be 
no  plea  to  an  action  on  an  annuity  deed  that  the  defendant  was  a  sovereign 
prince  at  the  time  it  was  made  without  showing  either  that  it  was  an  act  of 
state  or  that  the  defendant  retained  his  sovereign  character  at  the  time  of 
action  brought. 

And  in  Wadsioorth  v.  The  Queen  of  Spain,  17  Q.  B.  171,  and  De  Haber  v. 
77ie  Queen  of  Portugal,  17  Q.  B.  196,  proceedings  in  foreign  attachment 
instituted  against  property  belonging  to  those  sovereigns  in  their  public 
capacity  by  the  holders  of  Spanish  and  Portuguese  bonds  were  stayed  by 
prohibition.  [In  support  of  the  general  principle  of  the  immunity  of  sover- 
eign princes  and  of  their  property  in  respect  of  acts  of  state,  see  further 
Gladstone  v.  The  Ottoman  Bank,  32  L.  J.  Ch.  228 ;  Same  v.  Musurus  Bey,  Id. 
155;  Smith  V.  Weguelin,  L.  R.  8  Eq.  198;  38  L.  J.  Ch.  465;  Doss  v.  Secretary 
of  State  for  India,  L.  R.  19  Eq.  509;  Tvjycross  v.  Dreyfus,  5  Ch.  D.  605,  46  L. 
J.  Ch.  510;  Vavasseur  v.  Krupp,  9  Ch.  D.  351;  llie  Constitution,  4  P.  D.  39; 
48  L.  J.  P.  D.  &  A.  13. 

In  the  case  of  The  Charkieh,  L.  R.  4  A.  &  E.  100;  42  L.  J.  Adm.  17,  Sir  R. 
Phillimore  elaborately  discusses  the  subject  of  the  immunities  of  foreign 
princes  in  this  respect,  and  lays  down  that  the  courts  of  this  country  have 
jurisdiction  to  entertain  proceedings  instituted  in  rem,  though  the  property 
be  that  of  a  foreign  sovereign,  and  in  some  cases,  it  would  seem,  even  though 
such  property  may  be  "  of  a  public  character,  as  for  instance  a  ship  of  war :  " 
and  further,  that  a  sovereign  may,  by  assuming  the  character  of  a  trader. 


958  MosTVN  V.   1  ai{Km;a.s. 

waive  in  respect  of  smli  tnvdiiiir  tlu-  privile;;e  wliicli  lie  enjoys  ;;cner:illy  .•. . 
a  soverei<;n  and  rendt-r  liiniself  lial)le  to  tlie  jurisdiction  of  an  Kntjlish  court. 
The  Court  of  Queen's  Bencli  refused  to  interfere  in  this  case  by  prohibition 
to  tlie  Court  of  Admiralty.  Thp  Chnrkieh,  L.  K.  H  Q.  B.  T.tT ;  42  L.  J. 
Q. B.  75. 

The  above  dicta,  however,  were  unnecessary  to  the  decision,  as  tlie  learn<Ml 
jndije  further  held  that  the  Viceroy  of  Ejjypt,  to  whom  the  Churkiih  l>elon;;cd, 
was  not  afuri'i(/n  s<irerri(jn  so  as  to  be  entitled  to  the  privilcj^e  claimed.  And 
in  the  important  case  of  The  ]'itrli')neiit  Bi'ltjr,  ">  V.  D.  1'.)".  the  Court  of 
Appeal,  after  full  considi-r.ition,  overruled  them,  and  held  that  foreign  sover- 
ei^j^ns  enjoy  the  same  immunity  from  procecdinirs  in  nm  as  from  actions  in 
personaui,  and  that  their  property  is  ecpially  privileged  in  this  respect  whether 
ships  of  war  or  trading  vessels.  The  subject  will  be  found  very  fully  dis- 
cussed in  the  interesting  and  exhaustive  judgment  delivered  by  Lord  Esher, 
then  Lord  Justice  Brett,  in  the  last  cited  case. 

In  the  later  case  of  Strnusherg  v.  RepnhUc  nf  Costa  liira,  21l  W.  R.  12'),  Lord 
Justice  James,  after  stating  that  '■'  it  is  a  violation  of  the  respect  due  to  a 
foreign  sovereign  or  state  to  issue  the  process  of  our  courts  against  such 
sovereign  or  state,"  mentions  two  exceptions,  if  they  can  be  called  excep- 
tions, to  this  rule.  First,  "  that  where  a  foreign  sovereign  or  state  comes  into 
the  courts  of  this  country  for  the  purpose  of  obtaining  some  reme<ly,  then  by 
way  of  defence  to  that  proceeiling  the  person  sued  here  may  tile  across  claim 
against  that  sovereign  or  state  for  enabling  complete  justice  to  be  done  be- 
tween them."  Secondly,  he  refers  to  '*  the  case  in  which  a  sovereign  may  be 
named  as  a  defendant  for  the  purpose  of  giving  him  notice  of  the  claim 
which  the  plaintiH"  makes  to  funds  in  the  hands  of  a  third  person  or  trustee 
over  whom  this  court  has  jurisdiction,  and  who  alleges  that  the  foreign  sov- 
ereign has  also  some  claim  upon  the  funds  in  iiuestion.  These,"  adds  his 
lordship,  '•  arc  the  only  exceptions." 

Thus  — to  illustrate  the  llrst  exception  and  the  way  in  which  it  has  been 
cnf oi'ced  in  our  courts  —  if  a  foreign  sovereign  sue  here,  and  a  cross  action 
be  brought,  our  courts  will  stay  proceedings  in  the  original  action  until  the 
foreign  sovereign  name  a  proper  person  to  be  made  a  defendant  for  the  pur- 
pose of  discovery,  see  Hepnblic  of  Peru  v.  Wer/ueliii.  L.  R.  20  Eq.  1-tO;  Repuhlir 
of  Costa  Rica  v.  Erlanger,  1  Ch.  D.  171,  and  in  default  of  a  sufficient  affidavit 
of  discovery  being  made,  will  dismiss  the  proceedings,  RepnhUc  of  LUieria  v. 
Rye,  1  App.  Cas.  139,  45  L.  J.  Ch.  297.  Security  for  costs  may  be  ordered: 
Republic  of  Costa  Rica  v.  Erlanger,  3  Ch.  D.  C2. 

Whilst  instances  exemplifying  the  second  exception  will  l)e  found  in  Glad- 
stone V.  Musnrus  Bey,  32  L.  J.  Ch.  l.')5,  where  a  court  of  equity  granted  an 
injunction  restraining  the  Bank  of  England  from  paying  over,  except  under 
direction  of  the  court,  a  sum  of  money  deposited  by  the  plaintiff  as  caution- 
money  for  the  fulfilment  on  their  part  of  a  concession  granted  to  them  by 
the  Turkish  government :  and  in  Laririere  v.  Morgan,  L.  R.  7  Ch.  550,  41  L.  J. 
Ch.  746,  where  Lord  Ilatlierley,  C,  affirmed  a  decree  of  Malins,  V.-C,  by 
whicli  it  was  directed  that  a  fund  deposited  with  persons  in  this  country  by 
the  French  government  for  the  purpose  of  a  contract  made  by  them  with  the 
plaintifls  should  be  applied  in  payment  of  his  claims  under  the  contract.  In 
neither  of  these  cases  did  the  foreign  government  appear.  The  judgment  in 
Laririere  x.  Morgan  was  reversed  in  Dom.  Proc. ;  but  upon  the  ground  that 
the  facts  showed  only  a  personal  undertaking  by  the  defendant,  not  any  trust 
or  assignment  of  a  trust-fund,  so  as  to  give  the  court  jurisdiction,  Morgan  v. 


IMOSTYN    V.    FABRIGAS.  "  959 

Lnriviere,  L.  R.  7  H.  L.  423,  44  L.  J.  Ch.  457.  The  same  distinction  was 
dwelt  upon  in  Twycross  v.  Dreyfus,  uhi  sup.  and  in  The  Pnrlement  Beige,  5  P. 
D.  at  p.  201.  Both  tliese  cases  are  distinguislied  on  the  ground  that  in  eacli 
of  tlieni  tliere  was  a  trustee  wlio  could  be  sued  in  our  courts. 

In  the  case  of  a  suit  by  a  foreign  sovereign  in  amity  with  us,  although  the 
foreign  sovereign  is  entitled  to  sue  in  our  courts  for  wrongs  done  to  him  by 
English  subjects  without  authority  from  the  English  government  in  respect 
of  property  belonging  to  him  either  in  his  individual  or  his  corporate  capacity, 
yet  he  cannot  maintain  a  suit  here  for  invasions  of  his  prerogative  as  reign- 
ing sovereign.  See  the  judgments  and  the  cases  collected  in  The  Emperor  of 
Austria  v.  Day,  30  L.  J.  Cha.  690 ;  The  King  of  Portugal  v.  Bussell,  31  L.  J. 
Cha.  34;  Prioleau  v.  United  States  of  America,  L.  R.  2  Eq.  659;  36  L.  J.  Ch. 
36 ;  United  States  of  America  v.  Wagner,  L.  R.  2  Ch.  582 ;  United  States  v. 
McRae,  L.  R.  8  Eq.  69.  Nor  can  the  foreign  sovereign  sue  in  the  name  of 
his  ambassador;  Penedo  v.  Johnson,  22  W.  R.  103. 

As  to  how  far  an  English  court  will  entertain  an  action  by  an  English 
subject  engaged  in  the  service  of  a  foreign  government  against  another  offi- 
cial in  the  same  service  for  a  libel  contained  in  a  report  made  by  the  defend- 
ant in  his  official  capacity,  both  plaintiff  and  defendant  being  British  subjects, 
see  Hart  v.  Gumpach,  L.  R.  4  P.  C.  439 ;  42  L.  J.  P.  C.  25.] 

Upon  the  same  principle  which  exempts  sovereigns  from  liability  to  be 
sued  in  respect  of  acts  of  state,  seems  to  rest  the  immunity  of  a  soldier 
against  actions  by  foreigners  for  acts  done  by  him  in  a  hostile  manner,  in  the 
name  of  the  government  which  he  serves,  provided  those  acts  be  either  au- 
thorised by  an  actual  command,  or  ratified  by  a  subsequent  approval  of  the 
government :  to  such  acts  the  maxim  respondeat  superior  seems  to  apply  in 
its  widest  sense  :  and  if  any  injury  inflicted  by  them,  (if  redress  be  denied  by 
the  government,)  there  is  no  remedy  but  an  appeal  to  arms ;  see  Vin.  Abr. 
Prajrogative  (L.  a):  Elphinstone  v.  Bedreechund,  1  Knapp.  (Privy  Council), 
316;  Dobree  v.  Napier,  2  N.  C.  781;  Buron  v.  Denman,  2  Exch.  167;  Paradine 
V.  Jaiie,  Style  R.  48;  [Reg.  v.  Lesley,  1  Bell,  C.  C.  220,  S.  C.  8  Cox,  C.  C.  269; 
29  L.  J.  Exch.  877;  The  Secretary  of  State,  &c.,  of  India  v.  Kamachee  Boye 
Sahaba,  13  Moore,  P.  C.  22. 

On  a  question  whether  a  government  officer  was  liable  to  the  plaintiffs  (who 
were  Indian  subjects  of  her  Majesty)  for  an  act  done  by  him  in  his  oflicial 
capacity,  the  lords  of  the  Privy  Coimcil  laid  down,  that  "  if  the  act  which  he 
did  was  in  fact  wrongful  as  against  the  plaintiffs,  and  produced  damage  to 
them,  they  must  have  the  same  remedy  by  action  against  the  doer,  whether 
the  act  was  his  own  spontaneous  act  and  unauthorised,  or  whether  it  was 
done  by  the  order  of  the  superior  power.  The  civil  irresponsibility  of  the 
supreme  power  for  tortious  acts  could  not  be  maintained  with  any  show  of 
justice,  if  its  agents  Avere  not  personally  responsible  for  them;  in  such  cases 
the  government  is  morally  bound  to  indemnify  its  agent,  and  it  is  hard  on 
such  agent  if  this  obligation  is  not  satisfied;  but  the  i-ight  to  compensation 
in  the  party  injured  is  paramount  to  this  consideration."  Rogers  v.  Rojendro 
Dult,  13  Moore,  P.  C.  236 ;  see  per  cur.  Feather  v.  Reg. ,  35  L.  J.  Q.  B.  200,  209 ; 
S.  C.  16  C.  B.  N.  S.  310;  Tobin  v.  Reg.,  33  L.  J.  C.  P.  199.  See  0' Byrne  v. 
Hartington,  I.  R.  11  C.  L.  445,  453,  as  to  the  non-liability  of  a  superior  officer 
for  a  legal  order  illegally  carried  out,  and  see  Grant  v.  Secretary  of  State  for 
India,  2  C.  P.  I).  445,  46  L.  J.  C.  P.  681,  as  to  the  non-liability  of  a  govern- 
ment oflicial  for  the  dismissal  of  a  military  officer,  or  for  the  publication  of 
such  dismissal  in  the  Gazette. 


960  MosTVN  V.  I  aih:i(;as. 

As  to  tho  non-liability  of  a  H'>v«'rn!nont  odlclal  on  a  contract  ma»lo  by  him 
for  the  public,  sec  (yUrmlij  v.  CurtUrell,  '21  W.  li.  34(»;  I'ltlmvr  v.  llnlrhininni, 
6  App.  Ca.  G19. 

As  to  the  liability  intir  se  of  persons  jojtiirif;  in  u  iiostile  expetlition  for  uctH 
done  in  ol)edience  to  the  lawful  orders  of  fjovernnieiit  olllcers  sent  out  in 
coinnuind  of  the  expedition,  see  Ilixhikinson  v.  Firnir,  2  ('.  B.  N.  S.  41'>.J  As 
to  an  a<'tion  for  acts  done  abroad  by  a  rouannndinij  offirer  in  Ins  ollicial  capa- 
city, as  reducin!;  a  ni)n-conin>issioiied  ollicer  to  tiie  ranlis,  Jtc,  see  linnriH  v. 
Keppcl,  Wils.  :{14. 

Whetlier  an  nmhiins(Hh>r  is  entitled  to  absolute  exemption  from  suit  in  the 
courts  of  the  country  to  which  he  is  sent,  or  only  to  be  protected  from 
process  which  nuvy  ilirectly  atl'ect  his  person  or  property,  was  discussetl  in  the 
case  of  Taylor  v.  Dntuct,  14  C.  B.  4«7,  where  it  was  consiilered  unnecessary 
to  decide  the  question,  the  court  being  of  opinion  that  such  a  privilejie,  If  It 
existed,  was  at  all  events  waived  by  the  defentlant's  havin<;  volinitarily 
appeared  to  the  writ,  and  not  raised  any  objection  until  a  lat»'  sta;:e  of  the 
proceedinj;s.  (^iKirf.  whether  in  that  case  too  much  stress  was  not  laid  upon 
the  opinion  of  Bynkershoek  as  to  proccedimjs  in  rem  in  tlie  case  «>f  princes 
and  ambassadors;  .see  Wailximrth  v.  Thr  (ini'i-n  <>/  Spain,  17  (^.  B.  171,  per 
curiam.  [The  (juestion  has  since  been  resolved  In  favour  of  the  ambassador, 
on  the  principle  "  ouinis  rnartin  a  Ir'jato  nhesse  (Ithet."  The  Mmidahna  Steam 
Nuvi(jatinn  Co.  v.  Martin,  2  El.  &  El.  y4,  28  L.  J.  Q.  B.  ;^10;  (Hadstone  v. 
Mustiriis  Hoy,  32  L.  J.  Cha.  155;  The  Secretary  of  State  for  India  v.  Kamachee 
Boxje  Sahaha,    \:\  Moore,  Pr.  C.  22;  Parkinson  v.  Potter,  IG  Q.  B.  D.  152.] 

As  to  the  liability  of  jndijes  for  judicial  acts,  see  further,  Calder  v.  Ilalkett, 
3  Moore  (Privy  Council).  28;  flraham  v.  LajUte,  Ibid.  :5H2 ;  IlonUlen  v.  Smith, 
14  Q.  B.  841;  [Gelen  v.  Hall,  2  H.  &  N.  371);  and  Harnardintone  v.  Soame,  6 
Howell,  State  Trials,  10'.)5 ;  Kemp  v.  Xerille,  10  C.  B.  N.  S.  54i»,  M  L.  J.  C.  P. 
158;  Fray  v.  Blarkhnrn,  3  B.  &  S.  57G ;  Scott  v.  Stansjiehl.  L.  U.  3  Ex.  220; 
37  L.  J.  Ex.  155;    llf/i'fV  v.  M<t<ia<itlan,  1  Ex.  1).  :'.7f;.  4.">  L.  .1.  Ex.  089]. 


Jurisdiction  of  the  Suhject-Matter. 

Preliminary  distinctions.  —  A  .superficial  examination  of  the 
autluuilie.s,  on  the  subject  of  traii.sitory  actions,  jjresents  much 
apparent  confusion  that  falls  away  when  expressions  are  accu- 
rately defined,  and  the  subject  proi)erly  subdivided.  In  the 
first  place,  the  division  of  actions  into  local  and  transitory  must 
not  be  confused  with  that  into  real,  personal,  and  mixed'.  The 
latter  will  prove  no  reliable  guide  to  the  former.  Again,  the 
question  of  jurisdiction  of  the  person  is,  of  course,  quite  dis- 
tinct from  that  of  jurisdiction  of  the  subject-matter.  In  deter- 
mining if  a  court  have  jurisdiction  of  a  cause  of  action  that 
arose,  or  affects  property,  outside  of  its  territory,  we  are  not 
assisted  b}'  the  circumstance  that  the  defendant  has  been  per- 
sonally served  with  its  process  within  that  territory,  or  has  vol- 
untarily submitted  himself  to  that  jurisdiction.     Jurisdiction  of 


MOSTYN    V.    FABRIGAS.  961 

the  person  is  quite  as  essential  as  jurisdiction  of  the  subject- 
matter  to  make  the  judgment  or  decree  a  valid  one,  but  its  ex- 
istence does  not  aid  us  in  determining  whether  the  cause  of 
action  itself  be  local  or  transitory.  Then,  again,  there  is  the 
distinction  between  the  power  of  a  court  to  enforce  a  cause  of 
action  arising,  or  affecting  property,  outside  of  its  territory,  and 
its  duty  to  determine  the  controversy  according  to  some  law 
other  than  its  own ;  as,  for  instance,  lex  loci  contractus  or  lex  loci 
rei  sitae.  The  application  of  the  foreign  law  may  determine  the 
sufficiency  of  a  claim  or  defence,  but  only  in  isolated  cases  does  it 
determine  the  locality  of  an  action.  At  all  events,  the  duti/  to 
apply  a  foreign  law  is  a  different  thing  from  the  power  to  enforce 
a  foreign  cause  of  action.  And  it  is  a  general  principle  that  the 
provisional  remedies  incident  to  the  law  of  the  forum  accom- 
pany the  general  jurisdiction,  irrespective  of  the  practice  of  the 
forum  where  the  cause  of  action  arose.  So,  too,  the  capacity 
in  which  a  defendant  is  sued  may  defeat  the  jurisdiction ;  a 
corporation  may  not  exist  outside  of  the  territory  of  the  sover- 
eignty which  created  it ;  Gibbs  v.  Queen  Ins.  Co.,  63  N.  Y. 
114.  Courts  may  decline  to  interfere  with  the  distribution  of 
assets  by  a  foreign  administrator  or  receiver ;  Davis  v.  Morriss, 
76  Va.  21.  And  the  jurisdiction  of  a  Court  of  Chancery,  act- 
ing in  personam  on  the  conscience  of  the  defendant,  is  only  an 
apparent  exception  to  the  doctrine  that  actions  affecting  the 
ownership  or  possession  of  real  j)roperty  are  local  and  confined 
to  the  forum  where  the  property  is  situated.  So,  too,  the  lack 
of  jurisdiction  in  so-called  Federal  causes  is  referable  mainly  to 
those  instances  in  which  by  the  United  States  Constitution  and 
Acts  of  Congress,  enacted  pursuant  thereto,  Federal  courts  are 
given  exclusive  jurisdiction,  or  one  or  both  parties  the  right  of 
removal  from  state  to  Federal  courts.  With  this  distinction 
the  Federal  cases  off'er  great  assistance  in  determining  the  law 
of  the  jurisdiction  of  the  sul)ject-matter.  In  considering  the 
jurisdiction  of  causes  of  action  conferred  solely  by  statute,  it 
must  be  remembered  that  while  there  is  a  presumption  that  the 
common  law  of  one  state  is  that  of  every  other,  there  is  no 
such  presumption  in  the  case  of  statutory  law ;  Whitford  v. 
Panama  R.  R.  Co.,  23  N.  Y.  465.  Some  confusion  is  made  in 
the  books  by  cases  construing  statutes  defining  the  jurisdiction 
of  local  courts.  It  is  uniformlj'^  held  that  such  statutes  do  not 
apply  to  actions  arising  out  of  the  state  in  which  they  were 


962  .MosrvN    V.    I  ai;i:i(;as. 

enacted;  Home  Iiis.  Co.  c  Penii.sylv;mi;i  II.  K.  Co.,  11  Iliin 
182.  Again,  there  are  exeeption.s  more  ajtpareiit  than  real, 
where  considerations  of  comity  and  international  (jhligation 
divest  the  onliiiary  authoiity.  As,  lor  instance,  where  coiirt.s 
decline  jurisdiction  over  residents  as  to  pro[)erty  which  they 
hold  merely  as  agents  of  a  foreign  government;  Leavitt  v. 
Dabney,  3  Ahb.  Pr.  N.  S.  469 ;  or  of  actions  for  j)ersc»nal  inju- 
ries done  by  a  defendant,  in  the  exercise  of  a  foreign  sover- 
eignty, even  though  he  no  longer  represent  it;  Ilatcli  r.  Haez,  7 
Hun  596.  And  it  should  Ik;  rcmcndK-red  that  the  American 
law  on  the  juristliction  of  the  subject-matter  is  somewhat  com- 
plicated by  the  circumstance  that  it  is  oidy  in  a  certain  sense 
that  the  states  are  foreign  to  each  other.  For  the  purpose  of 
this  note,  however,  it  may  be  assuinc<l  that  they  are,  except  so 
far  as  the  I'nited  States  Constituti«>n  provides  that  "Full  faith 
and  credit  shall  be  given  in  each  state  to  the  public  acts,  records, 
and  judicial  proceedings  of  every  other  state."  Considerations 
of  public  policy  sometimes  intervene  to  make  courts  decline 
the  jurisdiction  which  would  otherwise  be  assumed.  Thus, 
although  as  a  general  ride  courts  apply  the  lex  loci  in  constru- 
ing all  contracts  involving  questions  of  marriage,  legitimacy, 
and  rights  of  succession  to  property,  they  will  not  enforce  such 
foreign  law  if  it  involves  any  conse([uences  immoral,  contrary 
to  general  policy,  or  in  violation  of  the  conscience  of  the  state 
whose  couits  aie  ap[)caled  to;  Eubanks  v.  Banks,  34  Ga.  415. 

Jurisdiction  in  general. —  Every  act  of  a  court  is  the  exercise 
of  jurisdiction.  .luiisdiction  itself  is  the  power  to  hear  and 
determine  the  controversy  between  parties  to  an  action  or  suit. 
If  the  law  confers  the  power  to  adjudicate  between  the  parties, 
that  is  to  say,  to  exercise  judicial  power  over  them,  the  court 
has  jurisdiction ;  Rhode  Island  v.  Massachusetts,  12  Pet.  657. 
The  question  presents  itself  in  three  forms.  A  court  may  act 
without  this  power,  in  which  event,  its  act  or  judgment  is 
wholly  void,  and  is  as  though  it  had  not  been  done ;  secondly, 
a  court  may  exercise  its  power  Avrongfully,  for  which  its  judg- 
ment must  be  reversed  on  appeal ;  or,  thirdly,  it  may  use  its 
power  rightfully,  but  irregularly,  for  which  its  judgment  must 
be  corrected  on  motion  ;  Paine  v.  Mooreland,  15  Ohio  435  ;  Gray 
V.  Bowles,  74  Mo.  419.  Jurisdiction  oi  the  person  is  acquired 
when  the  party  is  before  the  court,  in  fact,  or  constructively, 
by  reason  of  service  upon  him  of  a  process  known  to  the  law. 


MOSTYN    V.    FABRIGAS.  9G3 

and  duly  issued  and  executed ;  Lange  v.  Benedict,  73  N.  Y.  12. 
An  objection  to  jurisdiction  on  the  ground  of  exemption  from 
the  process  of  the  court,  or  the  manner  in  which  it  is  executed, 
is  waived  by  appearance,  without  making  the  objection,  or  by 
any  distinct  recognition  of  tlie  court's  authority  in  tlie  course 
of  a  cause ;  Rhode  Ishmd  v.  Massachusetts,  12  Pet.  657 ;  Minne- 
apolis Works  V.  Hedges,  11  Neb.  46 ;  Graves  v.  Richmond,  56 
la.  69 ;  Rheiner  v.  Union  Depot  Co.,  31  Minn.  289,  and  cases 
there  cited.  Jurisdiction  of  the  sul)ject-matter  is  the  power 
lawfully  conferred  to  deal  with  the  general  subject  involved  in 
the  action.  It  is  to  be  distinguished  from  the  po^yer  to  act 
upon  a  particular  state  of  facts ;  Hunt  v.  Hunt,  72  N.  Y.  217. 
And  it  is  the  power  conferred  by  the  act  creating  the  court, 
or  possessed  inherently  by  its  constitution ;  Lamar  v.  Commis- 
sioners Court,  21  Ala.  772.  In  determining  if  a  court  have 
jurisdiction  of  the  subject-matter,  questions  as  to  service  of 
process,  voluntary  appearance,  waiver  of  objections  by  answer- 
ing on  the  merits,  &c.,  become  immaterial  because  jurisdiction 
of  the  subject-matter  cannot  be  conferred  by  consent;  Dudley 
V.  Mayhew,  3  N.  Y.  9 ;  Montgomery  v.  Anderson,  21  How.  386 ; 
Brondberg  v.  Babbott,  14  Neb.  517 ;  nor  by  waiver,  Orcutt  v. 
Hanson,  71  Iowa  514 ;  except  that  in  doubtful  cases  courts  will 
not  permit  the  objection  to  prevail  after  the  parties  jji'oceed, 
voluntarily,  to  hearing  on  the  merits.  Appeal  of  Adams,  6  Atl. 
Rep.  100 ;  nor  by  laches,  Titus  v.  Relyea,  8  Abb.  Pr.  177 ;  nor 
by  confession  of  judgment,  Coftin  v.  Tracy,  3  Caines  129; 
Howell  V.  Gordon,  40  Ga.  302  (where  it  was  held  that  a  judg- 
ment confessed  by  a  non-resident  is  not  binding  against  a  third 
jjerson,  because  the  court  has  no  jurisdiction  against  a  non-resi- 
dent, not  served  with  its  process).  And  a  legislature,  whose 
powers  by  the  constitution  are  confined  to  legislation,  cannot 
confer  or  dispense  Avith  jurisdiction  by  remedial  legislation 
validating  a  proceeding  void  for  want  of  authority  to  entertain 
it ;  Maxwell  v.  Goet,  11  Vroom  383,  and  cases  there  cited.  On 
the  other  hand,  jurisdiction  cannot  be  abridged  by  agreement 
between  the  parties  which  limits  the  principle  of  decision  to 
be  adopted  in  the  case ;  Watts  v.  Boom  Co.,  47  Mich.  540.  So, 
too,  jurisdiction  once  vested  cannot  be  ousted  by  subsequent 
events  ;  Etes  v.  Martin,  34  Ark.  410  ;  Morgan  v.  Morgan,  2 
Wheat.  290.  And  where  a  court  has  no  jurisdiction,  its  judg- 
ment or  decree  is  not  simply  voidable  but  void,  and  may  be  col- 


964  MOSTYN    V.    1  A1{K1(;AS. 

laterally  impeached;  Lamar  v.  Commissioners  Court,  21  Ala. 
772;  Campbell  v.  MeCalian,  41  111.  4 'j ;  Mersier  v.  Chase,  91 
jNIass.  242 ;  and  its  process  then  gives  no  protection  to  the  otli- 
cer  of  the  court  exccutinj^  it;  DriscoU  r.  Place,  44  Vt.  252; 
Allen  V.  Carey,  10  Wend.  349;  Skilton  v.  Winslow,  4  CJray  441. 
And  it  seems  that  when  a  court  havinf;^  jurisdiction  is  properly 
applied  to,  it  must  exercise  it,  from  wliatevcr  snurci'  «»l)taint'd; 
Cook  V.  Whipple,  55  N.  Y.  15U.  But,  on  the  other  hand,  where 
there  is  no  jurisdiction,  a  court  will  not  proceed  with  the  mat- 
ter, and  should  not  even  render  an  opinion,  lu'causi-  its  judt;- 
ment  will  be  fruitless.  A  judicial  judt^mcnt  is  the  product  of 
the  power  of  the  law.  If  the  law  do  not  confer  the  power,  it 
is  a  nullity ;  Smith  v.  Myers,  109  Ind.  1  ;  Robertson  v.  State, 
Id.  79.  Thus,  for  instance,  a  member  of  the  bar  cannot  be 
given  jurisdiction  of  a  cause  by  consent,  and  a  court  will  not 
even  entertain  an  appeal  from  his  decision;  Iloagland  v. 
Creed,  81  111.  500.  Finally,  distinction  nuist  be  made  between 
limitation  of  jurisdiction  and  iiifciiority  of  jurisdiction.  Every 
court  is  subject  to  some  limitation,  territorial  or  otherwise. 
But  courts  of  limited  jurisdiction  are  not  necessarily  inferior 
in  the  sense  that  there  is  no  ])resumption  of  jurisdiction  when 
their  judgments  are  assailed  collaterally ;  People  v.  Bradner, 
107  N.  Y.  1. 

Transitory    Actions. 

1 .  Independently  of  statute  law.  —  Transitory  actions  are 
those  in  which  the  transaction  is  one  that  might  have  occurred 
at  any  place;  local  actions  are  those  in  whicli  the  transaction  is 
necessarily  local.  This  distinction  is  technical,  but  too  well 
established  to  be  disregarded  ;  Livingston  v.  Jefferson,  1  lirock. 
203.  Personal  actions  whether  v.r  rontrartu  or  ex  delicto  are 
transitory  and  may  be  brought  anywhere,  whatever  the  resi- 
dence of  the  parties.  In  contemplation  of  law,  the  injury 
arises  anywhere  and  everywdiere.  The  right  to  recover  rests 
on  the  presumption  that  the  common  law  prevails  where  the 
cause  of  action  arose,  and  that  the  plaintiff  could  have  recovered 
there  ;  Leonard  v.  Columbia  Steam  Co.,  84  N.  Y.  48.  As  soon 
as  one  person  becomes  liable  to  another  in  such  action,  that 
liability  attaches  to  the  person  and  follows  him  wherever  he 
goes.  He  cannot,  by  removing  from  one  place  to  another, 
discharge  himself  of  that  liabilitv  :  Stout  v.  Wood.  1  Blackf.  70  ; 


MOSTYN    V.    FABKIGAS.  965 

Smith  V.  Bull,  17  Wend.  323  ;  Hale  v.  Lawrence,  1  Zab.  714 ; 
Curtis  V.  Bradford,  33  Wise.  190 ;  Peabody  v.  Hamilton,  106 
Mass.  217,  and  cases  there  cited.  Such  actions  include  slander, 
Boynton  v.  Boynton,  43  How.  Pr.  380;  negligence,  Central  R. 
R.  Co.  V.  Swint,  73  Ga.  651 ;  Atkinson  v.  Erie  Railway  Co.,  2 
Vroom  309 ;  assault  and  battery,  Watts  v.  Thomas,  2  Bibb.  458 ; 
NcAvman  v.  Goddard,  3  Hun  70 ;  trover,  Robinson  v.  Arm- 
strong, 34  Me.  145;  case  for  assisting  plaintiff's  slave  to  escape. 
Northern  R.  R.  Co.  v.  Schell,  16  Md.  331 ;  fraud,  Johnson  v. 
Whitman,  10  Abb.  Pr.  N.  S.  Ill ;  enticing  away  plaintiff's 
wife,  Burdick  v.  Freeman,  46  Hun  138.  As  to  that  species  of 
property  which  has  no  habitat^  such  as  debts  or  choses  in  action, 
jurisdiction  of  the  person  must  include  jurisdiction  of  the  thing ; 
Keyser  v.  Rice,  47  Md.  203.  An  action  lies  for  illegal  collec- 
tion of  a  tax  in  another  state ;  Henry  v.  Sargent,  13  N.  H. 
321.  An  action  will  be  maintained  by  one  non-resident  against 
another  to  subject  to  the  payment  of  a  debt  the  shares  of  a 
domestic  corporation ;  Quarl  v.  Abbott,  102  Ind.  233.  In  Bar- 
ton V.  Barbour,  104  U.  S.  126,  it  was  held  that  a  receiver  can- 
not be  sued  even  at  law,  in  the  courts  of  one  state  for  the 
personal  wrongs  of  his  agents,  when  he  is  in  possession  of  and 
managing  property  administered  by  the  court  of  his  appoint- 
ment, in  another  state.  But  it  was  decided  otherwise  in 
Allen  V.  Central  R.  R.  Co.,  42  Iowa  683,  and  in  Kennc}^  v. 
Crocker,  18  Wise.  74,  where  it  was  held  that  the  action  would 
lie  without  leave  of  court  even  though  the  receiver  had  been 
appointed  by  the  Federal  court.  The  courts  will  not  enforce 
the  internal  revenue  laws  of  another  Jiation ;  McFee  v.  South 
Car.  Ins.  Co.,  2  McCord  503.  And  qucere,  if  a  court  will 
entertain  an  action  for  injury  resulting  from  the  defective 
condition  of  a  highwa}^  in  another  state,  the  matter  intimately 
concerning  the  internal  police  regulations  of  that  state ;  Hunt 
V.  Pownal,  9  Vt.  411 ;  and  see  Molony  v.  Dows,  8  Abb.  Pr. 
316,  where  the  court  declined  jurisdiction  of  an  action  for 
injuries  done  by  a  vigilance  committee  in  another  state  ;  and 
see  Pickering  v.  Fish,  6  Vt.  102.  But  where  all  the  parties  are 
non-residents  and  the  cause  of  action  arose  out  of  the  state,  al- 
though the  court  does  have  jurisdiction,  its  exercise  is  a  matter 
of  sound  discretion,  and  it  should  not  be  exerci;:;ed  unless  spe- 
cial causes  are  shown  to  exist ;  Burdick  v.  Freeman,  46  Hun 
(N.  Y.)  138.    The  fact,  however,  that  there  is  fear  of  the  defend- 


966  MOSTYN    V.    FABUIGA8. 

ant's  influencincr  a  jury  in  his  state  is  not  a  reason  recognized 
for  retaining  jurisdiction.  And  it  should  Ije  declined  if  de- 
fendant is  only  casually  here  ;  DeWitt  v.  Buchanan,  54  Barb. 
31.  Jurisdiction  in  such  cases  rests  on  comity  and  will  be  de- 
clined where  a  statutory  tort  (putting  off  defendant  from  cars 
between  stations)  has  been  committed  outside  of  the  United 
States,  both  parties  being  aliens ;  Great  Westei-n  U.  Co.  v. 
Miller,  19  Mich.  305.  So,  too,  the  cognizance  oi  wrongs  on 
the  high  seas,  both  parties  and  the  vessel  being  foreign,  is  not 
a  matter  of  right  but  of  discretion,  and  it  ought  not  to  be  ex- 
ercised where,  for  aught  that  appears,  both  parties  intend  to  re- 
turn immediately  to  their  own  country  ;  Gardner  v.  Thomas 
14  Johns.  134.  Such  an  action,  however,  by  a  discharged  sea- 
man, or  one  leaving  without  the  mate's  objection,  should  be 
entertained ;  Johnson  v.  Dalton,  1  Cow.  543.  And  on  the 
other  hand,  a  stipulation  by  a  seaman  not  to  sue  except  in  his 
own  country  ought  to  be  observed  unless  the  voyage  is  ended; 
Olzen  V.  Schierenberg,  3  Daly  100.  The  objection  to  entertain- 
ing jurisdiction  in  cases  where  it  is  a  matter  of  discretion, 
should  be  taken  by  motion  ;  I)e  Witt  v.  Buchanan,  54  Barb. 
31.  A  mere  request  to  the  court  to  charge  the  juiy  that  ac- 
tion is  not  maintainable  held  insufficient ;  Burdiek  v.  Freeman, 
46  Hun  138. 

Where  all  the  facts  transpired,  while  })oth  parties  were  resi- 
dents of  another  state,  the  rights  must  be  determined  accord- 
ing to  the  law  of  that  state ;  Sal  tee  v.  Chandler,  26  Mo.  124 ; 
R.  R.  Co.  V.  Kanaley,  17  Pac.  Rep.  (Kans.)  327.  On  the  other 
hand,  where  in  an  action  of  slander  for  words  not  actionable  at 
common  law,  but  made  so  by  the  statute  of  the  forum,  it  will 
not  be  presumed  that  a  similar  statute  exists  in  the  state  where 
the  words  were  spoken,  and  the  action  will  not  be  entertained ; 
Stout  V.  Wood,  1  Blackf.  70.  But  although  a  cause  of  action  be 
assigned  in  a  state  where  such  assignment  is  void,  the  assignee 
will  be  recognized  in  the  forum  of  the  state  where  the  cause 
of  action  arose,  if  in  such  state  such  an  assignment  would  be 
valid;  Vimont  v.  11.  R.,  &c.,  Co.,  69  Iowa  296.  Provisional  reme- 
dies follow  the  law  of  the  forum.  So  that  in  an  action  between 
non-residents,  defendant  can  be  arrested  for  fraud  in  contract- 
ing a  debt,  although  he  could  not,  in  the  state  where  it  was 
contracted,  and  although  the  whole  transaction  took  place  out- 
side of  the  state ;  Johnson  v.  Whitman,  10  Abb.  Pr.  N.  S.  111. 


MOSTYN   V.    FABRIGAS.  967 

A  foreign  creditor  may  have  against  a  foreign  debtor,  tempo- 
rarily in  the  state,  all  the  remedies  afforded  by  its  court  even 
though  harsher  than  the  remedies  of  the  place  where  the  con- 
tract was  made  ;  Sicard  v.  Whale,  11  Johns.  194 ;  Peck  v.  Hozier, 
14  Johns.  346.  The  pendency  of  an  action  in  one  state  is  no 
bar  to  an  action  between  the  same  parties  and  with  the  same 
subject-matter  in  another.  A  judgment  in  one  state  does  not 
merge  the  cause  of  action  so  as  to  oust  jurisdiction  in  other 
states ;   Davis  v.  Morriss  Executors,  76  Va.  21. 

Transitory  Actions.     As  affected  by  Statute  Law. 

A  remedy  given  by  a  statute  of  another  state,  for  wrong 
done  there,  will  be  enforced  in  the  courts  of  any  other  state 
whose  public  policy  is  not  opposed  thereto.  Thus,  where  a 
person  is  killed  by  the  negligence  of  a  defendant  in  any  state 
where  the  statute  gives  the  personal  representative  the  right 
to  recover  damages,  either  generally  for  the  benefit  of  the 
estate,  or  specially  for  the  benefit  of  the  widow  and  next  of  kin, 
or  otherwise,  recovery  can  be  had  in  any  other  state,  where  the 
personal  representative,  properly  qualified,  applies  for  relief ; 
Leonard  v.  Navigation  Co.,  84  N.  Y.  48 ;  Dennick  v.  R.  R.  Co., 
103  U.  S.  11 ;  Morris  v.  R.  R.  Co.,  65  Iowa  727.  The  contrary 
doctrine,  where  the  foreign  statute  does  not  declare  the  rem- 
edy to  be  for  the  benefit  of  the  estate  generally,  is  held  in  cer- 
tain jurisdictions  on  the  ground  that  this  remedy,  given  to  the 
personal  representatives  as  trustees  of  a  right  of  property  in 
the  widow  and  next  of  kin,  is  not  of  such  a  nature  that  it  can 
be  imparted  to  a  foreign  administrator  virtute  officii.,  so  as  to 
give  him  a  right  to  sue  in  the  courts  of  the  state  where  ap- 
pointed, and  to  transmit  the  rights  of  action  from  one  person  to 
another  in  connection  with  the  representation  of  the  deceased. 

"  A  succession  in  the  right  of  action  not  existing  by  the 
common  law  cannot  be  prescribed  by  the  laws  of  one  state  to 
the  tribunals  of  another ; "  Richardson  v.  R.  R.  Co.,  98  Mass. 
85  ;  Taylor  v.  R.  R.  Co.,  78  Ky.  348.  So,  too,  such  relief  was 
denied  on  the  ground  that  the  administrator  is  not  appointed 
to  represent  the  interest  for  whose  benefit  the  foreign  statute 
gives  the  remedy  ;  Mackay  v.  R.  R.  Co.,  14  Blatch.  Qb  ;  Wood- 
ard  V.  R.  R.  Co.,  10  Ohio  St.  121  ace,  because  the  statute  es- 
tablishes   a    special    trust.     Semhle    aliter,  if   an    administrator 


968  MOSTYN    V.    FA  15  RIG  AS. 

appointed  in  the  state  where  the  injury  occurred  sues  here  to 
recover  the  funds  for  distribution  in  the  state  of  appointment. 
But  the  former  seems  to  be  the  sounder  doctrine.  The  court 
of  tlie  forum  can  compel  proper  distribution  as  well  as  the 
foreign  court.  The  administrator  often  receives  property  which 
must  go  direct  to  the  next  of  kin  or  legatees  and  not  to  tlie 
ceneral  estate.  The  statute  could  have  limited  the  ritdit  if 
that  had  been  the  intention,  -It  is  dillicult  to  understand 
how  the  nature  of  the  remedy  or  the  jurisdiction  of  the  courts 
to  enforce  it  is  in  any  manner  dependent  on  the  question 
whether  it  is  a  statutory  or  a  common  law  right ; "  Jus- 
tice Miller,  in  Dennick  v.  R.  R.  Co.,  108  U.  S.  11.  On  the 
other  hand,  although  actions  for  personal  injuries  committed 
abroad  are  sustained  in  the  first  instance,  witliout  proof  of  the 
lex  loci,  this  presumption  does  not  apply  where  the  wrong  com- 
plained of  is  one  for  which  redress  can  only  be  given  by  stat- 
ute;  Mtd)()nald  v.  Malory,  77  N.  Y.  540.  So  that  if  defend- 
ant's wrong  causes  deatli  in  a  state  where  there  is  no  statute 
giving  a  remedy,  the  fact  that  there  is  such  a  statute  in  the 
state  of  the  forum  gives  no  cause  of  action:  Hyde  r.  Wabash 
Co.,  01  Iowa  441 ;  Needham  v.  R.  R.  Co.,  38  Vt.  204.  Even 
though  both  parties  are  citizens  of  the  state  of  the  forum,  and 
the  negligence  causing  the  death  was  a  breach  of  contract  en- 
tered into  in  such  state.  If  the  wrong  is  not  actionable  where 
it  was  committed,  it  would  be  contrary  to  all  reason  that  it 
should  be  made  so,  by  invoking  redress  in  another  state ;  State 
V.  R.  R.  Co.,  45  Md.  41.  Such  statutes  have  no  extra-territorial 
effect  and  it  cannot  be  presumed  with  respect  to  positive  stat- 
ute law,  that  the  laws  of  other  states  are  similar  to  those  of 
the  forum ;  Debevoise  v.  R.  R.  Co.,  98  N.  Y.  377. 

A  liability  in  the  nature  of  a  penalty  imposed  by  statute 
will  be  enforced  only  by  the  courts  of  the  state  which  enacted 
it ;  National  Bank  v.  Price,  33  Md.  498.  As,  for  instance, 
where  a  statute  makes  the  directors  of  a  company  liable  for  its 
debts,  in  consequence  of  certain  derelictions  of  duty.  It  is  not 
like  the  contractual  obligation  of  stockholders,  Corning  v. 
McCullough,  1  Comst.  47 ;  or  the  charter  obligation  of  incor- 
porators, and  this  liability  of  directors  is  not  to  be  construed 
as  arising  out  of  a  contract,  implied  from  the  acceptance  of 
the  charter ;  Bird  v.  Hayden,  1  Robertson  383 ;  Derrickson  v. 
Smith,    3  Dutcher   166.     Foreign   statutes  are  respected   and 


MOSTYN   V.    FABRIGAS.  969 

enforced  beyond  the  territory  in  which  they  are  enacted  only 
as  a  matter  of  comity  and  public  policy,  and  foreign  courts  will 
not  enforce  such  as  impose,  by  way  of  penalty,  on  stockholders 
or  directors,  liability  for  corporate  debts ;  Halsey  v.  McLean, 
12  Allen  438.  The  same  doctrine  applies  to  usury  laws ;  Gale 
V.  Eastman,  7  Mete.  14.  And  to  statutes  imposing  double 
damages  on  railroad  companies  for  injury  to  property,  in 
running  their  trains ;  Bettys  v.  R.  R.  Co.,  37  Wise.  326.  Sem- 
hle  contra^  Boyce  v.  R.  R.  Co.,  63  Iowa  70,  in  which  case,  how- 
ever, it  is  to  be  noted  that  a  similar  statute  existed  in  the  court 
of  the  forum,  making  the  "-policy"  the  same  in  both  states. 
So,  too,  a  penalty  imposed  by  act  of  Congress  upon  a  national 
bank  will  not  be  enforced  by  a  state  court,  although  Congress 
expressly  authorizes  it  so  to  do ;  Missouri  Tel.  Co.  v.  National 
Bank,  74  111.  217.  Sed  eo7itra,  National  Bank  v.  Overman,  22 
Neb.  116,  and  cases  cited.  And  a  statute  making  a  witness 
convicted  of  an  infamous  offence,  incompetent  to  testify,  has 
no  extra-territorial  effect;  Commonwealth  v.  Green,  17  Mass. 
515.  On  the  other  hand,  though  foreign  penal  statutes  will 
not  be  enforced,  yet  where,  e.g.,  as  in  statutes  relating  to  gam- 
bling, they  create  a  debt,  the  cause  of  action  for  the  debt  be- 
comes transitory  ;  Flanagan  v.  Packard,  41  Vt.  561. 

A  legislature  cannot  create  personal  liabilities  on  account  of 
transactions  occurring  beyond  its  territory,  and  give  them  a 
character  which  they  do  not  have  at  the  place  of  their  occur- 
rence ;  Steamboat  v.  Stunt,  10  Ohio  St.  582  ;  Le  Forest  v.  Tol- 
man,  117  Mass.  109;  Stout  v.  Wood,  1  Blackf.  70.  Comity 
does  not  require  a  court  to  sacrifice  the  rights  of  its  own  citi- 
zen to  protect  a  plaintiff  against  the  consequences  of  his  own 
acts  under  statute  and  municipal  regulations  of  other  states ; 
Woodward  v.  Roane,  23  Ark.  523.  An  official  bond  given  in 
another  state,  and  by  statute,  enforceable  only  in  a  particular 
way  and  by  a  particular  officer  as  often  as  necessary,  for  the 
benefit  of  any  relator,  can  be  enforced,  in  that  way,  only  by  the 
courts  of  such  state ;  Pickering  v.  Fish,  6  Vt.  102.  A  vessel 
registered  at  a  port  of  the  state  is  within  its  territory,  even 
while  on  the  high  seas,  in  the  sense  that  an  assignment  by  the 
Insolvency  Court  passes  title  as  against  subsequent  transfers  or 
proceedings  in  rem;  Crapo  v.  Kelly,  16  Wall.  610.  A  court 
will  enjoin  one  citizen  at  the  prayer  of  another,  from  prosecut- 
ing an  attachment  in  another  state,  to  subject  to  the  j^ayment 


970  MOSTVN    V.    KAHllIGAS. 

of  a  debt,  earnings  exempt  by  the  law  of  the  state,  of  which  the 
parties  are  residents;  Snook  v.  Snetzer,  2')  C)liio  St.  olO. 

TranHitory  Actions,  quasi  Local. 

a.  At  law. —  It  is  a  jjeneral  rule  that  actions  iuvolvinjj  the 
ownership  or  possession  of  lands  are  hx-al.  And  courts  will 
not  take  juiisdiction  of  such  actions  affecting  lands  outside  of 
their  territory,  even  to  prevent  a  failure  of  justice  or  l)ecause 
the  remedy  of  the  forum  is  less  difheult  or  doubtful;  Living- 
ston V.  Jefferson,  1  liroek,  203.  Actions  of  trespaxa  quare 
clauHum  froi/it  are  local;  De  Courcy  v.  Stewart,  20  Hun  501. 
Even  though  the  trespass  be  followed  by  asportation  of  chattels; 
Dodge  V.  Colby,  37  Ilun  515.  But  it  seems  that  if  the  action 
were  simply  for  conversion  of  jtroperty  so  carried  away,  thus 
waiving  the  original  trespass,  action  would  become  transitory  ; 
American  Co.  v.  Middleton,  80  N.  Y.  408  ;  Newman  v.  Goddard, 
3  linn  70  ;  Whiddcn  v.  Sealey,  40  Me.  247.  Hut  defendant  to 
oust  the  jurisdiction  nnist  i)rove  the  property  to  be  realty. 
It  must  api)ear  affirmatively  that  plaintiff  owns  the  soil ;  Rogers 
V.  Woodbridge,  15  Pick.  14<».  And  where  the  gravamen  of  the 
action  is  negligence,  as  for  negligently  setting  fire  to  plain- 
tiff's house.  Home  Ins.  Co.  v.  II.  II.  Co.,  11  Hun  182,  or  for 
negligently  shipping  explosives  resulting  in  injury  to  real 
property,  Barney  v.  Burstenbindcr,  7  Laus.  210,  the  action  is 
transitor}-.  So,  too,  actions  for  diverting  water  are  local; 
Watts  V.  Kinney,  23  Wend.  4S4.  Although  it  seems  tliat 
Chancery,  in  some  cases,  has  taken  jurisdiction  to  prevent  hai'd- 
ship.  And  seinhle  contra,,  if  action  is  brought  in  the  state  where 
the  diverting  is  done,  even  though  the  lands  injured  are  in 
another  state  ;  Manville  Co.  v.  Worcester,  138  jVIass.  89.  Ao 
tions  for  wrongfully  overflowing  plaintiff's  land  are  local, 
Eachus  V.  R.  R.,  17  111.  434,  and  cannot  be  entertained  where 
the  wrong  was  done,  if  the  injury  be  to  lands  in  another  state  ; 
Wooster  v.  Lake  Co.,  25  N.  H.  525.  Actions  for  waste  are 
local;  Cragin  v.  Lovell,  88  N.  Y.  258.  And  a  nuisance  on 
lands  in  one  state,  injuring  lands  in  another,  is  actionable  in  the 
latter;  Ruckman  v.  Green,  9  Hun  225.  Actions  for  breafh  of 
convenants  affecting  real  property  and  de^^ending  upon  privity 
of  estate  are  local;  Lewis  v.  Ellis,  6  Mass.  331;  Clark  v.  Scud- 
der,  6  Gray  132;  White  v.  Sanborn,  6  N.  H.  220.     But  so  long 


MOSTYN   V.    FABRIGAS.  971 

as  the  recovery  does  not  affect  the  real  property,  and  does  not 
depend  on  privity  of  estate,  actions  are  not  local,  even  though 
real  property  be  the  subject-matter.  Therefore,  actions  for  use 
and  occupation,  Henwood  v.  Cheeseman,  3  Serg.  &  R.  500,  and 
for  damages  for  breach  of  covenant  to  convey,  Mott  v.  Codding- 
ton,  1  Robertson  267,  are  transitory ;  see  Bethell  v.  Bethell,  92 
Ind.  318.  And  in  an  action  on  a  bond  given  for  the  price  of 
land  in  another  state,  the  court  has  jurisdiction  to  determine 
the  question  of  title.  The  principal  draws  after  it  all  incidents  ; 
Clark  v.  Mclntyre,  Add.  235. 

b.  In  equity.  —  The  same  rule  as  to  local  actions  is  followed 
in  a  court  of  equity.  Its  decree  cannot  bind  foreign  lands. 
But  it  can  bind  the  conscience  of  the  defendant  with  respect  to 
the  land,  and  therefore  having  jurisdiction  of  the  person  it  will 
proceed  in  all  cases  of  fraud,  trust  or  contract,  even  though  its 
decree  affect  land  outside  of  the  territory;  De  Klyn  v.  Wat- 
kins,  3  Sandf.  Ch.  185;  Vaughn  v.  Barclay,  6  Whart.  392. 
Thus  courts  of  equity  have  jurisdiction  to  compel  a  conveyance 
by  defendant  of  land  in  a  foreign  state  ;  Gardner  v.  Ogden,  22 
N.  Y.  327 ;  Farley  v.  Shippen,  1  Wythe  254.  But  no  convey- 
ance except  by  the  party  holding  the  actual  title  can  be  effec- 
tive. A  court  cannot  by  its  judgment  or  decree  pass  the  title 
to  land  situate  in  another  country  ;  Watkins  v.  Holman,  16  Pet. 
25.  No  statute  or  decree  of  another  state,  without  the  actual 
conveyance  according  to  the  law  of  the  situs,  can  affect  the 
title  itself ;  West  v.  Fitz,  109  111.  442.  In  default  of  convey- 
ance by  the  owner,  the  court  cannot  transfer  title  by  the  deed 
of  its  own  officers,  e.g.,  by  a  guardian  ad  litem  for  infants ;  Page 
V.  McKee,  3  Bush  136.  And  courts  will  not  establish  a  trust 
affecting  lands  in  another  state,  Servis  v.  Nelson,  1  McCart. 
94 ;  nor  compel  a  testamentary  trustee  with  power  under  a  will 
to  sell  lands  in  another  state  to  exercise  such  power.  Blunt  v. 
Blunt,  1  Hawks  365.  But  courts  will  enforce  specific  per- 
formance of  a  contract  relating  to  foreign  lands,  Newton  v. 
Bronson,  13  N.  Y.  587;  Olney  v.  Eaton,  66  Mo.  664;  even 
though  where  the  contract  to  be  performed  within  the  territory 
of  the  court  is  made  outside  by  non-residents,  Baldwin  v.  Tal- 
madge,  39  Super.  Ct.  (N.  Y.)  400,  and  cases  cited ;  and  even 
though  the  only  defendant  who  has  an  interest  in  the  land  is 
without  the  jurisdiction,  by  compelling  delivery  of  an  executed 
deed  in  the  possession  of  the  vendor's  agent.  Ward  v.  Arre- 


972  MOSTYN    V.    FABKKiAS. 

doiulo,  Hopkins  213 ;  Sliattuck  v.  Cassidy,  3  Edw.  lo2.  But  a 
court  cannot  annul  the  conveyance  of  land  situate  in  another 
state.  The  state  of  the  situs  could  disregard  such  a  decree. 
While  a  court  can  compel  those  before  it  to  release  their  claims, 
it  cannot  assume  that  the  rights  of  hoyid  fide  purchasers  have 
not  intervened;  Cooley  v.  Scarlett,  38  111.  31G ;  Davis  v.  Head- 
ley,  7  C.  E.  Green  115.  The  title  to  immovable  property  can 
only  be  affected  in  the  mode  recognized  by  the  laws  of  the 
state  Avithin  whose  territory  it  is  situated.  If  it  could  be,  by 
mere  decisions  of  the  courts  of  other  states,  registry  laws  would 
be  of  no  avail ;  City  Ins.  Co.  v.  Commercial  Bank,  68  111.  348. 
But  it  was  decided,  in  Guerrant  v.  Fowler,  1  lien,  ik,  ]Mun.  5, 
that  a  court  has  jurisdiction  to  decree  cancellation  of  a  deed 
obtained  within  its  jurisdiction  by  fi-aud.  Courts  of  equity 
can  state  an  account  between  owners  of  an  island  in  a  for- 
eign country.  The  decree  would  be  in  personam  not  in  rem ; 
Wood  V.  Warner,  2  McCart.  81.  A  court  of  equity  will  not 
enforce  a  trust  created  by  statute  of  another  state  relating  to 
land  in  that  state,  a  bond  to  a  court  of  that  state  being  required 
by  such  statute,  for  the  proper  performance  of  the  trust ;  Alger 
V.  Alger,  31  Ilun  471.  Courts  of  equity,  at  the  re([uest  of  one 
railroad  claiming  the  exclusive  right,  will  not  take  jurisdiction 
of  a  bill  to  enjoin  another  from  building  its  road  in  a  territory 
outside  of  the  state ;  Northern  Indiana  R.  K.  Co.  v.  Northern 
Central  R.  R.  Co.,  15  How.  233.  But  it  was  decided  in  Alex- 
ander V.  ToUeston  Club,  110  111.  65,  that  a  court  has  jurisdic- 
tion to  restrain  defendant  from  interfering  with  a  right  of  Avay 
in  a  foreign  state.  Courts  cannot  compel  a  sale  of  land  situ- 
ated in  another  state  or  appropriation  of  proceeds  to  pay  com- 
plainant's mortgage  ;  Tiffany  v.  Crawford,  1  McCart.  278.  But 
a  strict  foreclosure  of  a  mortofafje  on  lands  in  another  state  will 
be  granted;  House  v.  Lockwood,  40  Hun  532.  And  where 
tAvo  or  more  corporations  of  different  states  are  consolidated,  a 
court  of  either  of  the  states  in  foreclosinsr  a  mortCTagfe  on  the 
consolidated  property  has  jurisdiction  in  one  suit  to  sell  all  the 
property  in  all  the  states.  Separate  suits  are  unnecessary ; 
Blackburn  v.  Selma,  &c.  R.  R.  Co.,  2  Flip.  C.  Ct.  525 ;  Mead  v. 
New  York,  &c.  R.  R.  Co.,  45  Conn.  199.  Courts  have  power  to 
declare  void  a  mortgage  on  foreign  lands,  and  to  decree  sur- 
render of  same ;  Williams  v.  Fitzhugh,  37  N.  Y.  444.  Also  to 
compel  a  judgment  debtor  to  execute  a  deed  of  foreign  lands 


MOSTYN    V.    FABRIGAS.  973 

for  the  benefit  of  his  creditors ;  Bailey  v.  Ryder,  10  N.  Y.  363. 
But  they  have  no  jurisdiction  to  restrain  a  nuisance  affecting 
foreign  lands ;  Morris  v.  Remington,  1  Pars.  Eq.  386.  A  fraud- 
ulent conspiracy  in  another  state  to  deprive  plaintiff  of  title  to 
lands  in  such  state  is  transitory,  so  far  as  his  right  to  damages 
and  an  account  of  rents  is  concerned;  Mussina  v.  Belden,  6 
Abb.  Pr.  165.  So,  too,  suits  for  partition  of  real  property  are 
local,  although  a  court  in  one  state,  may,  it  seems,  entertain 
jurisdiction,  where  lands  are  situated  in  that  and  another  state, 
if  it  be  possible  to  allot  complainant's  share  from  the  lands  in 
the  state  of  the  forum  ;  Gates  v.  Woodrow,  2  Dana  457.  Courts 
of  the  state  where  the  land  is  situated  will  not  recognize  title 
made  by  the  court  of  another  state,  in  a  decree  of  partition ; 
Johnson  v.  Kimbro,  3  Head  557 ;  White  v.  White,  7  Gill  &  J. 
208.  A  stipulation  between  parties  agreeing  to  partition  in 
one  state  of  lands,  in  another  gives  jurisdiction,  and  an  injunc- 
tion of  partition  proceedings  in  the  other  state  will  be  granted ; 
Bowers  v.  Durant,  43  Hun  348. 

Foreign   Corporations. 

Independently  of  statute,  a  foreign  corporation  cannot  be 
sued  in  invitum,  even  though  some  of  its  stockholders  reside 
in  the  state,  and  service  is  made  there  on  the  secretary  while 
temporarily  present ;  Middlebrook  v.  Springfield  Ins.  Co.,  14 
Conn,  306.  And  although  a  statute  provide  generally  for 
service  on  a  corporation  by  service  on  one  of  its  officers,  such 
service  if  made  on  an  officer  of  a  foreign  corporation  does 
not  give  the  court  jurisdiction.  Service  must  be  made  in 
the  state  of  its  creation ;  Sullivan  v.  La  Crosse  Co.,  10  Minn. 
386.  But  a  state  may,  in  permitting  a  foreign  corporation 
to  transact  business,  impose  as  a  condition  that  the  corpo- 
ration shall  accept  as  sufficient  the  service  of  process  on  its 
agents,  and  such  condition  may  be  implied  as  well  as  expressed ; 
St.  Clair  v.  Cox,  106  U.  S.  350,  356.  The  agent  or  officer  must 
be  in  the  state  in  a  representative  or  official  capacity,  and  not 
as  a  mere  "casual  individual";  at  all  events,  in  actions  by  non- 
residents on  causes  of  actions  arising  outside  of  the  state ; 
Newell  V.  R.  R.  Co.,  19  Mich.  336.  Where  a  foreign  corporation 
is  practically  a  domestic  one,  i.e.,  has  an  office  and  transacts 
business  in  the  state,  it  may  be  sued  like  a  domestic  corporation 
on  transactions  occurrinp-  in  such  state  ;  Bawkright  v.  Ins.  Co., 


974  MOSTYN    V.    FAHUIGAS. 

55  Ga.  194.  But  a  railroad  company  incorporated  in  one  state, 
tlioiisfh  runnin<r  its  trains  into  another,  is  not  liable  there  to 
passengers  injured  in  the  former  state ;  R.  K.  Co.  i\  Carr, 
76  Ala.  388.  No  action  can  he  maintained  against  a  foreign 
corporation  unless  the  contract  sued  on  was  made  or  the 
injury  complained  of  was  suffered  within  the  state  ;  liawkright 
V.  Ins.  Co.,  55  Ga.  194 ;  Brooks  ik  Mexican  Co.,  50  Suj)er.  Ct. 
(N.  Y.)  281  ;  Parke  v.  Ins.  Co.,  44  Pa.  St.  422.  And  it  seems 
that  under  the  New  York  code  a  resident  may  recover  against 
a  foreign  corporation  for  any  cause  of  action  wherever  it 
arise,  and  although  property  beyond  the  jurisdiction  may  be 
affected,  or  the  relief  within  the  power  of  the  forum  Id  grant 
incomplete;  Ervin  v.  Oregon  Co.,  62  How.  Pr.  490,  and  cases 
there  cited.  One  foreign  corporation  may  sue  another  for 
wrongful  transfer  of  stock  made  in  the  state  of  the  forum; 
Toronto  Co.  v.  Chicago  Co.,  32  liun  190.  But  a  non-resident 
cannot  sue  a  foreign  corporation  to  compel  specific  performance 
of  a  contract  to  convey  lands  outside  of  the  state ;  Hann  v. 
Barnegat  Co.,  7  Civ.  Proc.  (N.  Y.)  222.  When  two  corpo- 
rations created  in  different  sovereignties  consolidate,  the  one 
state  cannot  with  its  legislation  follow  the  consolidated  cor- 
poration into  the  (Hher ;  R.  R.  Co.  v.  Auditor  General,  53 
Mich.  79.  And  a  court  of  one  state  cannot  compel  a  corpo- 
ration chartered  in  that  and  another  state  to  go  into  the  latter 
to  perform  a  duty  in  the  matter  of  right  of  way.  It  would 
seem  to  be  otherwise  if  the  act  could  be  performed  in  the 
state  of  the  forum,  even  though  that  act  affected  land  outside 
of  sucli  state ;  R.  R.  Co.  v.  Hammond,  58  Ga.  523.  Though 
the  charter  of  a  corporation  has  expired,  and  a  receiver  has 
been  appointed  in  the  state  of  its  creation,  comity  does  not 
prevent  the  attachment  by  a  corporation  of  another  state  of 
lands  in  such  state.  The  contracts  of  the  corporation  survive. 
And  the  decree  appointing  the  receiver  cannot  cover  real 
property  in  another  state  ;  Ins.  Co.  v.  Commercial  Bank,  68 
111.  348.  Courts  decline  to  exercise  jurisdiction  in  cases  in- 
volving the  internal  affairs  of  foreign  corporations,  its  officers, 
books,  and  assets  not  being  within  their  jurisdiction  and  con- 
tempt proceedings  impracticable.  Therefore  they  will  not 
enforce  an  agreement  to  make  apportionment  of  money  to  be 
received  by  it;  Fisher  v.  Ins.  Co.,  52  Super.  Ct.  (X.  Y.)  179. 
So,  too,  in  a  suit  by  a  stockholder  of  a  foreign    corporation 


MOSTYN   V.    FABRIGAS.  975 

against  it  and  another  corporation  to  which  it  had  leased  its 
property,  seeking  rehef  rehiting  to  the  transactions  between 
said  corjDorations ;  Gregory  v.  R.  R.  Co.,  13  Stew.  39.  Nor 
will  a  court  assist  a  non-resident  to  be  reinstated  in  a  forfeited 
policy  issued  by  a  foreign  life  insurance  corporation,  although 
it  transact  business  and  have  a  resident  agent  in  the  state. 
The  proceeding  invoked,  seeking  to  establish  an  artificial  re- 
lationship, affects  the  organic  law  of  the  corporation,  which  is 
necessarily  local  and  requires  local  administration ;  Smith  v. 
Ins.  Co.,  14  Allen  336.  Where  a  charter  provides  for  stock- 
holders' liability  by  levy  on  their  property  on  execution  against 
the  corporation,  and  for  compelling  ratable  contribution  by  the 
same  process,  there  is  no  general  liability  of  stockholders,  so 
that  jurisdiction  is  limited  to  the  state  granting  the  charter ; 
Lowry  V.  Inman,  46  N.  Y.  119. 

Illustrations  under  Federal  Law. 

Admiralty  can  take  jurisdiction  of  maritime  torts  committed 
beyond  United  States  boundaries  on  foreign  shijjs  in  actions  be- 
tween aliens ;  Mason  v.  Ship  Blaireau,  2  Cranch  240.  Where  a 
state  statute  gives  a  right  of  action  for  causing  death,  and  such 
death  is  caused  on  the  high  seas  by  the  tort  of  a  vessel  having  its 
home  port  in  said  state,  admiralty  will  enforce  the  right  in  rem  ; 
The  E.  B.  Ward,  17  Fed.  R.  456  ;  The  Harrisburg,  119  U.  S.  199 
qucere.  State  courts  have  concurrent  jurisdiction  of  causes  of 
action  cognizable  in  admiralty,  where  only  a  common  law  remedy 
is  sought ;  Bohannan  v.  Hammond,  42  Cal.  227 ;  Schoonmaker 
V.  Gilmore,  102  U.  S.  118.  State  courts  cannot  enforce  a  mari- 
time lien  nor  can  state  legislatures  create  one.  But  they  can 
enact  liens  and  provide  for  their  enforcement  in  rem.,  where 
they  do  not  exist  in  admiralty ;  e.g..,  for  supplies  obtained  in 
the  home  port;  Dever  v.  Steamboat,  42  Miss.  715.  So,  too, 
rights  growing  out  of  a  United  States  bankruptcy  law  may  be 
enforced  in  state  courts  in  all  proceedings  not  involving  the 
administration  of  the  law  itself;  Goodrich  v.  Lincoln,  93  111. 
359 ;  Cook  V.  Whipple,  55  N.  Y.  150  ;  Stevens  v.  Bank,  101 
Mass.  109 ;  Hastings  v.  Fowler,  2  Carter  216 ;  Brown  v.  Hall, 
7  Bush  m  ;  Gage  v.  Dow,  58  N.  H.  420.  But  Brigham  v.  Claf- 
lin,  31  Wise.  607,  contra.,  on  the  ground  that  the  act  making 
certain  transfers  void  is  penal,  and  should  not,  therefore,  be 
enforced  in   state   courts.      State    courts  have  jurisdiction  to 


976  MOSTYN    V.    rAIUlKiAS. 

enforce  a  penalty  ap^ainst  a  national  bank.  If  exclusive  juris- 
diction be  not  given  to  the  Federal  courts,  either  expressly  or 
by  necessary  implication,  the  state  courts  may  act.  Congress 
cannot  compel  them  to  act.  It  simply  confers  authority;  First 
National  Bank  v.  Overman,  22  Neb.  116,  and  cases  there  cited. 
Property  in  the  hands  of  a  United  States  marshal,  seized  under 
process  duly  issued,  cannot  be  interfered  with  either  by  injunc- 
tion or  replevin  issued  out  of  a  state  court ;  Freeman  v.  Howe, 
24  How.  450.  If  the  Federal  process  be  valid,  the  question  of 
title  is  irrelevant  in  the  state  court ;  Fensier  v.  Lammon,  6 
Nev.  209.  And  the  same  rule  a})plies  to  Itahcas  vorjms ;  Ex 
parte  Holman,  28  Iowa  88.  But  contni,  (iilnian  v.  Williams, 
7  Wise.  329,  to  the  effect  that  property  unlawfully  taken  is  not 
Avithin  the  custody  of  the  law.  See,  also,  Borth  i\  Ableman,  16 
Wise.  460,  deciding  that  the  state  court  has  jurisdiction  to 
return  to  the  marshal  property  unlawfully  replevied  from  him. 
But  where  the  amount  involved  is  so  small  that  the  claimant 
cannot  proceed  for  relief  in  the  Federal  courts,  replevin  from 
the  state  court  will  lie  against  the  marshal ;  Carew  v.  Matthews, 
41  Mich.  576.  And  an  exception  occurs  where  consent  has 
been  obtained  from  the  Federal  courts  to  proceed  against  the 
marshal  for  the  recovery  of  the  property  in  an  action  clearly 
identified;  Smith  v.  Bauer,  12  Pac.  Rep.  (Col.)  397.  And  the 
above  doctrine  docs  not  prevent  actions  only  for  damages,  for 
the  wrongful  taking  and  detention ;  Chapin  v.  James,  11  R.  I. 
86;  Stoughton  v.  Mott,  13  Vt.  175.  A  state  legislature  has  no 
power  to  abdicate  its  jurisdiction  over  places  within  its  limits, 
except  where  title  has  been  acquired  by  the  United  States,  and 
even  then  the  jurisdiction  to  punish  crime  continues  until  Con- 
gress by  further  act  has  extinguished  the  state  authority  and 
vested  exclusive  jurisdiction  in  the  Federal  courts ;  In  re 
O'Connor,  37  Wise.  379 ;  Marion  v.  State,  20  Neb.  233 ;  Foley 
V.  Shriver,  81  Va.  568. 

Actions  affecting  Estates  of  Decedents. 

As  a  general  rule  a  suit  cannot  be  maintained  against  an 
executor,  except  in  the  country  from  which  he  derives  his 
authority.  He  is  accountable  there  for  proper  distribution, 
and  it  would  be  a  hardship  to  require  him  to  account  else- 
where. And  domestic  creditors  can  object  to  any  transfer 
of   assets   until   their  demands   have   been  satisfied,  Davis   v. 


MOSTYX   V.    FABEIGAS.  977 

Morriss,  76  Va.  21 ;  particularly  where  the  will  has  not  been 
proved,  as  permitted  by  statute,  in  the  state  of  the  forum, 
Van  Giesen  v.  Banta,  13  Stew.  14 ;  Cocks  v.  Varney,  42 
N.  J.  Eq.  514.  Where  there  are  no  assets  in  the  foreign 
forum,  and  the  executor  is  not  personally  liable,  Murphy  v. 
Hall,  38  Hun  528 ;  or  is  not  sued  as  an  executor  de  son  tort, 
Campbell  v.  Tousey,  7  Cowen  64,  that  court  has  no  jurisdiction, 
Gray  v.  Ryle,  50  Super.  Ct.  (N.  Y.)  198.  But  under  special 
circumstances,  where  it  does  not  appear  but  that  all  creditors 
are  in  the  state  of  the  forum,  or  that  the  local  law  is  peculiar  in 
affecting  such  right  of  property,  foreign  courts  may,  in  the 
exercise  of  a  sound  judicial  discretion,  assume  jurisdiction ; 
Powell  V.  Stratton,  11  Gratt.  792 ;  Moses  v.  Hart,  25  Gratt.  795. 
Jurisdiction  in  equity  against  a  foreign  administrator  is  limited 
to  cases  not  simply  where  there  are  assets  in  the  state,  but 
where  these  assets  are  being  squandered,  or  to  prevent  breach 
of  trust  and  the  like  ;  see  Kanter  v.  Peyser,  51  Super.  Ct. 
(N.  Y.)  441.  On  the  other  hand,  courts  of  the  state  in  which 
the  will  is  probated  have  jurisdiction  to  order  parties  coming 
before  them,  either  as  proponents  or  witnesses  to  another  will, 
to  turn  over  property  belonging  to  the  estate,  held  by  them  in 
another  state  ;  Dietz  Case,  41  N.  J.  Eq.  284.  A  trust,  though 
relating  exclusivel}^  to  personal  property,  will  not  be  enforced  if 
it  arise  under  a  will  probated  in  a  different  state ;  Campbell  v. 
Sheldon,  13  Pick.  8 ;  Campbell  v.  Wallace,  10  Gray  162.  In 
the  case  of  legacies  charged  on  lands,  the  action  may  be  brought 
where  the  land  is  situated,  even  though  the  will  is  proved  and 
the  executor  resides  in  a  different  state  ;  Rennie  v.  Crombie, 
1  Beas.  457.  And  it  cannot  be  brought  elsewhere,  in  a  suit  to 
subject  the  land ;  Williams  v.  Nichol,  47  Ark.  But  suits 
brought  to  have  legacies  declared  liens  are  transitory ;  Lewis 
V.  Darling,  16  How.  1.  The  devisee  of  lands,  situated  in 
another  state,  and  charged  with  a  legacy,  can  be  sued  anywhere, 
on  the  implied  assumpsit  resulting  from  the  acceptance  of  the 
devise,  although  the  testator  resided  and  the  defendant  was 
appointed  executor,  in  the  state  of  the  situs ;  Brown  v.  Knapp, 
79  N.  Y.  136.  An  ancillary  administrator,  who  settles  his 
accounts  showing  a  balance  in  his  hands  in  the  ancillary  juris- 
diction, is  directly  liable  thereon  to  the  principal  administrator 
in  the  jurisdiction  of  principal  administration  ;  Garland  v.  Gar- 
land, 12  Va.  L.  J.  398. 


CREPPS   r.    DURDEN   ET   ALTOS. 


TRINITY.  - 17  (;i:n.  3,  n.  r. 

[rkpoktkd  cowr.  (!40.] 

A  person  can  commit  hut  one  ojf'ence  on  the  same  day,  by  '■'■  exercis- 
ing his  ordinary  calliny  on  a  iSunday"  contrary  to  the  statute 
29  Car.  %c.l. 

And  if  a  justice  of  peace  proceed  to  convict  him  in  more  than  one 
penalty  for  the  same  day,  it  is  an  excess  of  jurisdiction  for 
which  an  action  tvill  lie,  before  the  convictions  are  quashed  (secus 
now,  as  to  the  last  point,  hy  the  11  iV  12  ]''ict.  f.  44,  ».  2)  («). 

This  was  an  action  of  trespass  bionght  by  the  plaintiff 
against  the  defendant,  for  breaking  into  liis  liouse  and  talking 
away  his  goods,  and  converting  thoin  to  his  own  use  ;  to  this 
the  general  issue  was  pleaded,  and  the  cause  came  on  to  be 
tried  at  Westminster  before  Lord  Mansjidd,  at  the  sittings  after 
Easter  term,  1777  ;  when  a  verdii-t  was  foimd  for  the  phiintiff, 
for  three  several  sums  of  five  shillings  eath,  and  costs  40«., 
subject  to  the  opinion  of  the  court  upon  the  following  ease:  — 
"That  the  plaintiff  was  convicted  of  st'lliiig  small  hot  loaves 

(a)  See  an  analogous  case,  Brooks  alty  by  express  words  for  each  and 

and  another  v.  Glencross,  2  M.  &  Rob.  every  oflence,"  Pollock,  C.  B.,  A.-G. 

62;   and  see  R.  v.  Eastern  Counties  v.  McLean,  1  H.  &  C  750.      One  con- 

Raihcay,  10  M.  &  W.  58.     As  to  the  viction  for  several  curses   on  same 

effect  of  two  orders  or  convictions  day  with  a  cumulative  penalty  at  the 

for  the  same  offence,  see  Wilkins  v.  rate  of  so  mucli  per  curse  held  good, 

Hemsicorth,  7  A.  &  E.  807  ;    Wilkins  v.  R.  v.  Scott,  33  L.  J.  M.  C.  15.     Several 

Wright,  3  Tyrw.  830,  2  C.  &  M.  193.  convictions  for  selling  pieces  of  bad 

["The   form   which  the   legislature  meat  at  same  stall  on  same  day  held 

uniformly  adopts,  when  the  intention  good,  in  Re  Hartley,  31  L.  J.  M.  C. 

is  that  for  each  and  every  violation  232.     Ex  parte  Real,  L.  R.  3  Q.  B. 

of  an  act  of  parliament  there  shall  be  387.] 
a  distinct  penalty,  is  to  impose  a  pen- 

978 


CREPPS    V.    DUKDEN    ET    ALIOS.  979 

of  bread,  the  same  not  being  any  work  of  charity,  on  the  same 
day  (being  Sunday)  by  four  separate  convictions,  which  were 
as  follows  :  '  Westminster  to  wit.  Be  it  remembered,  that  on 
the  lOtli  of  November,  1776,  Peter  Crepps,  of,  &c.,  baker  and 
Salter  of  bread,  is  lawfully  convicted  before  me,  Jonathan 
Durden,  one  of  his  Majesty's  justices  of  the  peace  for  the  said 
city  and  liberty  of  Westminster,  for  unlawfully  doing  and  exer- 
cising certain  worldly  labour,  business,  and  work  of  his  ordinary 
calling  of  a  baker  in  the  parish  aforesaid,  by  selling  of  small 
hot  loaves  of  bread,  commonly  called  rolls,  the  same  not  being 
any  work  of  necessity  or  charity,  on  the  said  10th  of  November, 
being  the  Lord's  day,  commonly  called  Sunday,  contrary  to  the 
statute  in  that  case  made  and  provided  ;  for  which  offence  I,  the 
said  Jonathan  Durden,  have  adjudged,  and  do  hereby  adjudge, 
the  said  Peter  Crepps  to  have  forfeited  the  sum  of  five  shillings.'  " 

The  three  other  convictions  were  verbatim  the  same  without 
any  variation.  The  case  then  proceeded  to  state,  that  the 
defendant  Durden  issued  the  four  warrants,  afterwards  stated, 
to  the  other  defendants  who  by  virtue  of  those  warrants  levied 
the  four  penalties  of  five  shillings  each,  and  the  expenses.  The 
first  of  these  four  warrants  ran  thus :  —  "  Westminster  to  ivit. 
To  the  constables  of  St  James's,  in  the  city  and  liberty  of  West- 
minster. Whereas  information  has  been  made  before  me, 
Jonathan  Durden,  one  of  his  Majesty's  justices  of  the  peace 
for  the  city  and  liberty  of  Westminster,  that  Peter  Crepps, 
baker,  of,  &c.,  did  on  the  10th  of  November,  1776,  being  the 
Lord's  day,  commonly  called  Sunday,  exercise  his  trade  and 
ordinary  calling  of  a  baker,  by  selling  hot  loaves  of  bread,  con- 
trary to  the  statute  in  that  case  made  and  provided;  and 
whereas  the  said  Peter  Crepps  has  been  duly  summoned  to 
appear  before  me,  to  answer  to  the  said  information,  but  has 
contemptuously  refused  to  appear  to  answer  the  contents 
thereof;  and  whereas,  upon  full  examination,  and  upon  the 
oath  of  J.  H.,  the  said  Peter  Crepps  was  lawfully  convicted 
before  me  of  the  offence  aforesaid,  whereby  he  has  incurred  the 
penalty  of  five  shillings,  pursuant  to  the  statute  in  that  case 
made  and  provided;  therefore,  &c.  &c."  The  words  of  the 
other  three  warrants  were  verbatim  the  same. 

The  first  question  reserved  was,  whether  in  this  action,  and 
before  the  convictions  were  quashed,  an  objection  could  be 
made  to  their  legality  ?  if  an  objection  could  be  made,  then  a 


980  CREPPS    V.    DUUDEN    KT    ALIOS. 

nonsuit  was  to  he  cnturcd.  Hut  in  case  an  objection  to  their 
k'j^ality  might  be  made,  then  the  question  was,  whether  the 
levy  under  tlie  three  hist  warrants  could  })e  justilied?  If  not 
justifiable,  a  verdict  was  to  be  entered  for  the  plaintiff,  with 
15s.  damages  and  40s.  costs ;  if  justifiable,  then  a  verdict  was 
to  be  entered  for  the  defendants. 

Mr.  BuUer,  for  the  plaintiff,  as  to  the  first  point,  insisted  tliat 
wherever  a  conviction  is  in  itself  clearly  bad,  it  is  open  to  tlie 
party  to  take  objection  to  it  in  an  action  against  the  justice  ;  and 
it  is  no  answer  on  his  part  to  say,  that  the  conviction  is  not 
quashed,  or  in  force ;  because  it  is  incumbent  upon  him  to 
show  the  regularity  of  his  own  proceedings.  That  there  were 
several  cases  to  this  purpose;  and  though  they  were  decisions 
at  Nisi  Prius,  yet,  as  tliey  were  uniform  in  laying  down  the 
same  doctrine,  they  ouglit  to  have  considerable  weight  in  this 
case.  The  first  he  should  mention  was  Jfill  v.  Bateman^  1  Str. 
711 ;  not  for  the  princi[)al  matter  adjudged,  but  because  it  was 
agreed  on  all  hands,  in  that  case,  as  a  settled  point,  "that  in 
all  actions  against  justices  of  peace,  they  must  show  the  regu- 
larity of  their  pro(!eedings."  He  added  that  he  had  a  manu- 
script note  of  the  same  case  to  tlie  same  purport.  In  a  case  of 
Moult  V.  Jemiitu/s,  coram  Ut/re,  C.  .1.,  n{)on  trespass  and  false 
imprisonment  against  the  defendant,  and  the  general  issue 
pleaded,  it  a})peared  that  the  plaintiff  had  been  convicted  of 
swearing;  and  Ui/re  said,  if  the  nature  of  the  oaths  had  not 
been  specified  in  the  conviction,  so  that  they  might  appear  to 
the  court,  the  conviction  would  have  been  void.  In  Stanhury 
v.  Bolt^  coram  Fortisque,  J.,  Trin.  11  G.  1,  upon  trespass  for 
taking  a  brass  pan,  and  false  imprisonment,  it  did  not  appear 
that  the  plaintiff  had  been  summoned ;  and  the  conviction  was 
adjiulged  void  for  that  reason  only.  In  Coles's  Case,  Sir 
William  Jones,  170,  it  was  held  by  the  whole  court,  "  that  if  a 
justice  does  not  pursue  the  form  ^^'escribed  by  the  statute,  the 
party  need  not  bring  error,  but  all  is  void,  and  coram  non 
judice^  There  are  other  authorities  in  which  it  has  been  held, 
that  an  action  will  lie,  even  though  the  conviction  is  good  in 
point  of  form,  if  it  is  not  supported  by  the  truth  and  justice  of 
the  case.  There  was  one  in  Shropshire,  before  G-ould,  J.,  where 
the  plaintiff  had  been  convicted  upon  the  game  laws,  and  the 
conviction  itself  was  good  in  point  of  form ;  but  the  party  was 
not,  in  truth,  an  object  of  the  game  laws ;  whereupon    Crould 


CREPPS    V.    DUKUEX    ET    ALIOS.  981 

directed  the  jury  to  find  for  the  plaintiif,  which  they  accord- 
ingly did.  There  was  another  case  in  Lancashire,,  before  Mr. 
Justice  Gould,  to  the  same  effect.  In  criminal  cases,  it  is  clear, 
that  the  conviction  being  good  in  point  of  form  is  no  protection 
to  the  justice ;  and,  if  not,  why  should  it  be  so  in  a  civil  action  ? 
If  he  convict  illegally,  he  ought  not  to  be  sheltered,  and  an 
action  is  the  only  mode  of  redress  to  the  party  injured.  But, 
if  the  formality  of  the  conviction  is  to  be  an  answer  to  the 
action,  the  party  injured  would  be  without  redress,  where  he 
would  be  most  entitled  to  it ;  because  the  caution  of  the  justice, 
to  be  correct  in  form,  would  increase  in  proportion  to  his  inten- 
tion to  act  illegally.  In  Bruckleshury  v.  Smith,  2  Burr.  656, 
every  act  previous  to  the  conviction  is  set  out,  as  well  as  the 
conviction  itself.  If  this  case  had  happened  before  the  stat.  7 
Jac.  1,  c.  5,  which  enables  justices  of  peace  to  plead  the 
general  issue,  and  give  the  special  matter  in  evidence,  the  de- 
fendant must  have  specially  set  forth  every  stage  of  the  pro- 
ceedings upon  the  record,  and  the  omission  of  any  one  fact 
would  have  been  fatal :  or,  if  upon  the  face  of  the  record  it  had 
appeared  the  conviction  was  illegal,  it  would  have  been  a  good 
cause  of  demurrer.  Since  the  statute,  his  defence  must  be 
equally  good  in  evidence  :  for  the  statute  does  not  vary  the  law ; 
it  is  only  meant  to  ease  the  justice  from  the  difficulty  and  risk 
of  special  pleading.  Even  in  cases  where  the  legislature  gives 
a  summary  form  of  conviction,  and  where  no  summons  is  neces- 
sary, the  justices  must  pursue  the  form  prescribed,  or  it  will  be 
fatal.  Secondly,  upon  the  merits :  the  Avords  of  the  stat.  29 
Car.  2,  c.  7,  are,  "that  no  tradesman  or  other  person  shall  do  or 
exercise  any  worldly  labour,  business,  or  work  of  their  ordinary 
calling  on  the  Lord's  day,  works  of  necessity  and  charity  only 
excepted."  In  Hex  v.  Cox,  2  Burr.  786,  the  court  held,  "  that 
baking  puddings  and  pies  was  within  the  exception : "  and,  if 
so,  why  should  not  the  baking  rolls  be  so  too  ?  But  what  is 
decisive  is,  that  the  stat.  29  Car.  2,  c.  7,  gives  no  summary  form 
of  conviction ;  whereas  the  convictions  produced  barely  state 
that  the  plaintiff  was  convicted,  without  any  information,  sum- 
mons, appearance,  or  evidence  being  stated.  In  point  of  form, 
therefore,  all  four  are  bad.  Lastly,  supposing  they  were  good 
in  form,  the  three  last  are  an  excess  of  the  justice's  jurisdic- 
tion ;  for  the  offence  created  by  the  statute  is,  ''  exercising  his 
calling  on  the  Lord's  day."     If  the  plaintiff,  therefore,  had  con- 


982  CKEPl'S    V.    1)L  KDEN    KT    ALIOS. 

tinned  iKikinf]^  from  morninpf  till  nicrht,  it  wonld  still  he  bnt  one 
otlence.  Here  there  are  fonr  eonvietions  for  one  and  the  same 
offence;  consequently,  as  to  three,  there  is  an  excess  of  jurisdic- 
tion ;  and  if  so,  all  is  void,  and  coram  non  jmlice  :  and  an  action 
will  lie,  not  oidy  against  the  justice,  but  likewise  against  the 
officers.  To  this  point  he  cited  Ilardres,  484,  and  concluded 
by  praying  judgment  for  the  plaintiff. 

Mr.  T.  Coivper,  contra,  for  the  defendant,  contended,  1.  That 
by  the  bare  production  of  the  conviction  at  the  trial  the  cause 
was  at  an  end,  and  the  Court  estopped  from  any  further  iii(|uiiy. 
That  it  was  the  general  a[)preliension  and  prevailing  opinion  of 
the  profession,  founded  in  eonstant  practiee,  that  a  eonviction 
in  a  matter  of  which  the  justice  had  jurisdiction,  must  be  re- 
moved by  certiorari  and  (plashed,  before  it  can  be  (juestioned 
at  JVisi  Prius.  If  he  has  no  jurisdiction,  no  doubt  but  all  is 
coram  nan  jud ice  and  void.  l>nt  here  the  justice  had  jurisdic- 
tion ;  and  if  so,  with  deference  to  the  opinion  of  Mr.  Justice 
Gould,  in  the  case  tried  before  him  in  Shropshire,  the  convic- 
tion, as  to  the  matter  of  fact  contained  in  it,  is  conclusive  in 
favour  of  the  justice  in  an  action,  though  it  is  not  so  in  an  infor- 
mation. If  it  were  not,  instead  of  the  mischief  to  be  appre- 
hended from  the  oppression  of  the  justice,  no  one  would  act  in 
the  commission.  2.  As  to  the  objections  which  have  been 
taken  to  the  convictions  in  point  of  form,  he  said,  it  would  be 
time  enough  to  answer  them  when  the  convictions  were  re- 
moved and  stood  in  the  i)aper  for  argument.  At  present  it 
was  suflicient  to  observe  that  they  continued  as  so  many  judg- 
ments on  record,  and,  as  such,  conclusive,  till  reversed  by 
appeal,  or  quashed  by  this  court.  He  agreed  the  stat.  7  Jac.  1, 
c.  5,  did  not  vary  the  law  ;  but  insisted,  that  before  that  statute, 
it  would  have  been  a  good  plea  for  the  defendant  to  have 
stated  that  the  plaintiff  was  convicted,  &c.,  as  in  this  case ; 
and  if  the  plaintiff  had  traversed  the  conviction,  the  defendant 
might  have  demurred.  The  sole  ground  and  object  of  taking 
away  the  certiorari  in  the  several  acts  of  parliament  for  that 
purpose,  was  to  prevent  vexatious  suits  against  justices  for 
mere  informalities  in  their  proceedings.  But  they  still  remain 
liable  to  an  information  if  they  wilfully  act  wrong.  This  Court 
has  often  lamented,  when  obliged  to  quash  a  conviction  for 
want  of  form,  because  it  opens  a  door  to  an  action. 

As  to  this  being  but  one  continued  offence,  it  might  be,  that 


CEEPPS    V.    DUEDEN    ET   ALIOS.  983 

'it  was  carried  on  at  four  different  places;  for  there  is  evidence 
of  four  different  acts,  and  the  Court  will  not  presume  the  con- 
trary against  the  justice.  But,  if  the  nature  of  the  offence  is 
such,  that  it  could  only  be  committed  once  in  the  same  day, 
still  the  plaintiff  has  no  remedy,  while  the  convictions  are  in 
force,  but  by  removing  them  into  this  court  to  be  quashed  for 
illegality. 

Lord  Mansfield.  —  May  there  not  be  this  point,  that  the 
justice  had  no  jurisdiction,  after  convicting  the  plaintiff  in  the 
first  penalty  ?  The  act  of  parliament  gives  authority  to  punish 
a  man  for  exercising  his  ordinary  calling  on  Sunday.  The 
justice  exercises  his  jurisdiction,  by  convicting  him  in  the 
penalty  for  so  doing.  But  then,  he  has  proceeded  to  convict 
him  for  three  other  offences  in  the  same  day. 

Mr.  Coivper. — If  he  has  done  so,  it  is  only  a  ground  for 
quashing  the  convictions ;  but  no  priority  appears  to  give 
legality  to  one  in  preference  to  the  other. 

Lord  Mansfield.  —  This  point  you  agree  in ;  that  if  the  jus- 
tice had  no  jurisdiction,  it  is  open  to  inquiry  in  an  action. 
Now,  if  there  are  four  convictions,  for  one  and  the  same 
offence  committed  on  one  and  the  same  day,  three  of  them 
must  necessarily  be  bad ;  and,  if  so,  it  does  not  signify  as  to 
the  merits  of  the  action  which  of  the  four  is  legal,  or  which 
illegal. 

I  do  not  remember  that  at  the  trial  it  was  contended  the 
plaintiff  would  be  entitled  to  recover  if  the  convictions  were 
informal ;  or  that  any  objection  was  taken  to  their  formality 
there.  The  single  question  intended  to  be  tried  was,  whether 
there  could  be  more  than  one  penalty  incurred  for  exercising  a 
man's  ordinary  calling  on  one  and  the  same  Sunday  ?  As  to 
that  there  can  be  no  doubt:  the  only  doubt  was,  whether  that 
objection  could  be  taken  at  the  trial  before  the  convictions  were 
quashed.  In  the  extent  in  which  the  argument  upon  that 
point  has  proceeded,  it  is  a  matter  of  considerable  consequence; 
and,  as  a  general  question,  I  should  be  glad  to  think  of  it. 

Aston,  J.  —  The  Court  will  never  grant  an  information  unless 
the  conviction  is  quashed.  Hex  v.  JTeber,  2  Str.  915.  As  to 
the  general  question  before  the  Court,  suppose  the  justice  were 
to  convict  for  a  single  offence,  where  no  offence  at  all  had  been 
committed,  would  not  an  action  lie  in  that  case  '^  If  it  would, 
why  not  in  this,  where  there  are  four  convictions  for  one  and 


9H4  (JIIKIM'S    V.    DlltDEN     KT    ALIOS. 

the  same  oi'teiice/     It  seems  t<>  me   tliat   llie   luikin^  every  roll 
might  as  well  have  been  eharged  as  a  sejjarate  ofteiu-e. 

Cur.  n<lr.  rult. 


Afterwards,  oh  Wednesday,  June  18th  in  this  term.  Lord 
Mdnxficlil^  after  stating  the  ease  at  large,  delivered  the  unani- 
mous oi)inion  of  the  Court  as  foUows :  —  Upon  the  trial  of  this 
cause,  no  objeetion  was  made  to  the  formality  of  the  convic- 
tions :  I  doubt  whether  they  were  read,  and  for  this  reason  ; 
because,  by  tlie  state  I  have  of  tliem,  they  appear  dill'erent 
from  the  warrants ;  for  the  convictions  take  no  notice  of  any 
summons  (a),  nor  of  any  informations,  nor  of  any  evidence  (A) 
iij)on  oatli  given;  though  the  warrants  take  notice  of  a  sum- 
mons, of  the  defendant's  not  appearing  to  that  summons,  of  an 
information  laid,  and  evidence  given  upon  oath.  This  objec- 
tion would  have  gone  to  all  the  four  cases  e<pially,  but  at  thi- 
trial  no  objection  whatever  was  made  to  the  first  conviction  or 
warrant,  liut  the  objection  made  was  this  ;  that,  allowing  the 
first  conviction  and  warrant  to  be  good,  the  three  others  were 
an  excess  of  tin;  jurisdietion  of  the  justice,  and  beyond  it;  for 
that  on  the  true  construction  of  the  stat.  2l>  Car.  -,  c.  7,  there 
can  be  but  one  offence,  attended  with  one  single  penalty,  on 
the  same  day. 

In  answer  to  this  it  was  objected,  on  the  })art  of  the  def^-nd- 
ants,  that  no  such  objection  could  l)e  taken  to  the  convictions 
till  after  they  had  been  quashed  in  this  couit ;  and  that  if  a 
case  were  to  be  made  with  regard  to  that,  it  nmst  be  taken 
upon  the  question,  whether,  according  to  the  true  construc- 
tion and  meaning  of  the  act,  the  party  could  be  guilty  of 
repeated  offences  on  0113  and  the  same  day?  Therefore,  the 
questions  stated  for  the  opinion  of  the  court  on  the  present 
case  are,  first,  "  whether,  in  this  action,  and  before  the  convic- 
tions were  quashed,  an  objection  could  be  made  to  their  legal- 
ity? If  the  court  should  be  of  opinion  no  objection  could  be 
made,  then  a  nonsuit  to  l)e  entered  up ;  but  in  case  the  objec- 
tion might  be  made,  then,  "2ndly,  whether  the  levy  made  under 
the  three  last  warrants  could  be  justified?"     The  first  question 

(a)  Nor  that  the  defendant  made  {h)  Sec  R.  v.  Lovett,  7  T.  R.  152 ; 

default.     See  li.  v.  AUhu/tnu.  2  Str.  /.'.  v.   Theed,  2  Str.  919;  R.  v.  Smith, 

678 ;   R.  V.    Venables,  lb.   G30 ;   R.  v.  8  T.  K.  588. 
Stone,  1  East  649. 


CKEPPS    V.    DURDEN    ET    ALIOS.  985 

is,  "  whether  any  objection  can  be  made  to  the  legality  of  the 
convictions  before  they  were  quashed."  In  order  to  see 
Avhether  it  can,  we  will  state  the  objection :  it  is  this ;  that 
here  are  three  convictions  of  a  baker,  for  exercising  his  trade 
on  one  and  the  same  day ;  he  having  been  before  convicted  for 
exercising  his  ordinary  calling  on  that  identical  day.  If  the 
act  of  parliament  gives  authority  to  levy  but  one  penalty,  there 
is  an  end  of  the  question,  for  there  is  no  penalty  at  common 
law.  On  the  construction  of  the  act  of  parliament,  the  offence 
is  "  exercising  his  ordinary  trade  upon  the  Lord's  day ; "  and 
that,  without  any  fractions  of  a  day,  hours,  or  minutes.  It  is 
but  one  entire  offence,  whether  longer  or  shorter  in  point  of 
duration ;  so,  whether  it  consist  of  one,  or  a  number  of  particu- 
lar acts.  The  penalty  incurred  by  this  offence  is  five  shillings. 
There  is  no  idea  conveyed  by  the  act  itself,  that,  if  a  tailor 
sews  on  the  Lord's  day,  every  stitch  he  takes  is  a  separate 
offence ;  or,  if  a  shoemaker  or  carpenter  work  for  different  cus- 
tomers at  different  times  on  the  same  Sunday,  that  those  are  so 
many  separate  and  distinct  offences.  There  can  be  but  one 
entire  offence,  on  one  and  the  same  day ;  and  this  is  a  much 
stronger  case  than  that  which  has  been  alluded  to,  of  killing 
more  hares  than  one  on  the  same  day ;  killing  a  single  hare  is 
an  offence ;  but  the  killing  ten  more  in  the  same  day  will  not 
multiply  the  offence,  or  the  penalty  imposed  by  the  statute  for 
killing  one.  Here,  repeated  offences  are  not  the  object  which 
the  legislature  had  in  view  in  making  the  statute :  but  singly 
to  punish  a  man  for  exercising  his  ordinary  trade  and  calling 
on  a  Sunday.  Upon  this  construction,  the  justice  had  no  juris- 
diction whatever  in  respect  of  the  three  last  convictions.  How 
then  can  there  be  a  doubt,  but  that  the  plaintiff  might  take  this 
objection  at  the  trial?  2ndly.  With  regard  to  the  form  of  the 
defence,  though  the  stat.  7  Jac.  1,  c.  5,  enables  justices  of  peace 
to  plead  the  general  issue,  and  give  the  special  matter  in  evi- 
dence ;  in  doing  so,  it  only  allows  them  to  give  that  in  evidence, 
which  they  must  before  have  pleaded ;  and,  therefore,  they  must 
still  justify.  But  what  could  the  justification  have  been  in  this 
case,  if  any  had  been  attempted  to  be  set  up  ?  It  could  only 
have  been  this :  that,  because  the  plaintiff  had  been  convicted 
of  one  offence  on  that  day,  therefore  the  justice  had  convicted 
him  in  three  other  offences  for  the  same  act.  By  law  that  is 
no  justification:  it  is  illegal  on  the  face  of  it;  and,  therefore,  as 


986  rUKIM'S    \.    DUHDKN    ET    ALIoS. 

was  very  ri^litly  adinitted  by  the  counsel  for  tlic  defeiulaiil  in 
the  aiounient,  if  put  upon  the  record  by  way  of  jilea,  Avould 
liave  been  bad,  and  on  dcnuirrer  must  have  l)L'en  so  adjudj^cd. 
Most  clearl}',  then,  it  was  open  to  the  phiintiff  upon  the  general 
issue,  to  take  advantage  of  it  at  the  trial.  The  (piestion  d(»es 
not  turn  upon  niceties;  upon  a  computation  how  many  hours 
distant  the  several  bakings,  happened ;  or  upon  the  fact  of 
which  conviction  was  prior  in  jjoint  of  time  ;  or  that  for  uncer- 
tainty in  that  respect,  they  should  all  four  be  held  bad:  but  it 
goes  upon  the  ground,  that  the  offence  itself  can  be  committed 
only  once  in  the  same  day.  We  are,  therefore,  all  clearly  of 
opinion,  that  if  there  was  no  jurisdiction  in  the  justice,  tlie 
same  might  have  appeared  at  the  trial:  of  course,  we  are  of 
oi)inion  that  this  objection  might  have  been  made,  and  that  the 
objection  itself,  in  point  of  law,  is  well  founded. 
Per  Cur.     I*ostea  to  be  delivered  to  the  plaintiff. 


[Si'n.iiXT  to  tlu>  act  for  the  i)roto(tion  of  justices,  11  &  12  Virt.  c.  44,  a 
summary  of  which  will  presently  he  {jiven,]  the  rule  is  tlic  sauie  —  wliether 
the  conviction  appear  on  the  face  of  it  to  be  for  an  oHence  not  within  the 
miiiiistrate's  juri.siliction  —  or  to  be  for  an  oH'encc  within  the  magistrate's 
jurisdiction,  but  defective  for  want  of  the  circumstances  necessary  to  a 
conviction  for  that  ott'ence,  Griffiths  v.  Harries,  2  M.  &  W.  335;  see  Lancaster 
V.  Greaces,  9  B.  &  C.  G28 ;  Murrjan  v.  Ihujhes,  2  T.  K.  225;  Fearnley  v.  Worth- 
ington,  1  M.  &  G.  491;  Hardy  v.  Ryle,  9  B.  &  C.  G03;  Groome  v.  Forrester,  5  M. 
&  S.  320;  —  or  of  a  sufficiently  specific  statement  of  them,  Neirjnan  v.  Karl 
of  Hardwicke,  8  A.  &  E.  127 ;  R.  v.  Read,  9  A.  &  E.  619 ;  for,  as  was  observed 
in  Lancaster  v.  Greaves,  though  tlie  conviction  is  conclusive  upon  matter  of 
fact,  and,  if  the  defendant  mean  to  rely  on  matter  of  fact,  he  should  make 
his  defence  at  the  time,  the  rule  is  not  so  as  to  matter  of  law. 

So  if  the  conviction  of  two  persons  be  joint  for  offences  ex  necessitate  rei 
several,  it  will  be  void,  and  (subject  now  to  the  act  above  mentioned)  they 
may  sue  in  trespass  if  it  be  acted  upon,  Morgan  v.  Brown,  4  A.  sSc  E.  515.  And 
the  rule  is  the  same  in  the  case  of  a  single  conviction  of  one  person  for  two 
distinct  ofl'ences,  Neicman  v.  Bendyshe,  10  A.  &  E.  11. 

But  "  a  conviction  by  a  magistrate  who  has  jurisdiction  over  the  suljject- 
matter  is,  if  no  defects  appear  on  the  face  of  it,  conclusive  evidence  of  the  facts 
stated  in  it,"  Brittain  v.  Kinnaird,  1  B.  &  B.  482;  per  Dallas,  C.  J.  In  that 
case  trespass  was  brought  against  justice  for  taking  a  boat;  in  their  defence 
they  relied  on  a  conviction  which  warranted  them  in  doing  so.  The  plaintiff 
offered  evidence  to  controvert  the  facts  stated  in  the  conviction,  l)ut  it  was 
held  not  to  be  admissible.  Acco7-d.  Basten  v.  Careic,  3  B.  &C.  G49;  Faiccett 
V.  Fowles,  7  B.  &  C.  394;  Gray  v.  Cookson,  16  East,  13 ;  Loivther  v.  Earl  Rad- 
nor, 8  East,  113;  Ashcroft  v.  Bourne,  3  B.  &  Ad.  684;  R.  v.  Bolton,  1  Q.  B.  66; 
[Colonial  Bank  of  Australasia  v.  Willan,  L.  R.  5  P.  C  417 ;  43  L.  J.  P.  C.  39 ;] 


CEEPPS    Y.    DUEDEN    ET    ALIOS.  987 

and  the  same  attribute,  viz.,  that  of  being  conclusive  evidence  of  the  facts 
stated  tlierein,  and  properly  tending  thereto,  seems  to  have  been  thought  to 
belong  to  every  adjudication  emanating  from  a  competent  tribunal,  Aldridge  v. 
Haines,  2  B.  &  Ad.  395 ;  and  the  cases  cited  by  Coleridge  arguendo  ;  [see  also 
the  Whitlmrij-on-Severn  Union  Case,  4  E.  &  B.  321 ;  De  Cusse  Brissac  v.  Rath- 
hone,  G  H.  &  N.  301;  Kemp  v.  Neville,  10  C.  B.  N.  S.  549;  31  L.  J.  C.  P.  163. 
Ex  parte  Lamert,  33  L.  J.  Q.  B.  69.] 

Even  when  the  conviction  had  been  quashed  it  was  provided  by  the  43  G.  3, 
c.  141,  that  the  party  convicted,  in  an  action  against  the  justices,  which  was 
required  to  be  on  the  case,  should  only  obtain  two  pence  damages,  besides 
the  amount  of  the  penalty  if  levied,  and  no  costs  of  suit,  unless  he  expressly 
averred  malice  and  want  of  probable  cause ;  and  that  he  should  not  recover 
the  amount  of  the  penaltj'  if  the  defendant  proved  him  to  have  been  guilty  of 
the  ofl'ence  of  which  he  had  been  convicted,  and  that  he  had  undergone  no 
greater  punislnnent  than  was  by  law  assigned  thereto.  And  it  was  held  under 
this  act  that  he  must  at  the  trial  prove  not  merely  his  own  innocence  of  tlie 
oflence  of  which  he  was  convicted,  but  also  what  took  place  before  the 
justice  at  the  time  of  conviction,  in  order  that  it  may  appear  whether  there 
was  probable  cause  or  no.  Barley  v.  Bethune,  5  Taunt.  580.  See  Baylis  v. 
Strickland,  1  M.  &  Gr.  591. 

But  the  Stat.  43  Geo.  3,  c.  141,  is  now  repealed  by  the  11  &  12  Vict.  c.  44, 
intituled,  "An  act  to  protect  justices  of  the  peace  from  vexatious  actions 
for  acts  done  by  tliem  in  the  execution  of  their  office,"  the  first  section  of 
wliich  provides  that  every  action  to  be  brought  against  any  justice  after  the 
2nd  of  October,  1848,  for  any  act  done  by  him  in  the  execution  of  his  duty 
as  such  justice,  as  to  any  matter  within  his  jurisdiction,  [see  SommerviUe  v. 
Mirehouse,  1  B.  &  S.  652;  Lawrenson  v.  Hill,  10  Irish  C.  L.  R.  177;  Gelen  v. 
Hall,  2  H.  &  N.  379,]  shall  be  on  the  case,  and  tlie  declaration  shall  allege  the 
act  to  have  been  done  maliciously  and  without  reasonable  and  probable  cause, 
and  if  such  allegation  be  not  proved  upon  tlie  plea  of  the  general  issue,  the 
plaintifl"  shall  be  nonsuited,  or  a  verdict  shall  be  given  for  the  defendant.  See 
Kendall  X.Wilkinson,  [4  E.  &  B.  680;]  24  L.  J.  M.  C.  89;  Isemble,  in  cases 
witliiu  this  section,  tlie  action  may  be  maintained  wiCliout  the  conviction  or 
order  being  quashed,  per  Lord  Campbell,  C.  J.,  R.  v.  Wood,  5  E.  &  B.  58 ;  and 
see  Lawrenson  v.  Hill,  supra.  Qucere,  however,  whether  notwithstanding 
this  act  the  justice,  for  acts  done  in  the  execution  of  his  office,  might  not 
claim  the  protection  extended  generally  to  judicial  acts,  even  though  the  act 
was  done  maliciously.  See  the  cases  as  to  judges  cited  ante,  at  the  end  of 
notes  to  Mostyn  v.  Fabrigas-I 

But  when  the  act  is  done  Ijy  the  justice  in  a  matter,  of  which  he  has  no 
jurisdiction,  [as  in  Crepps  v.  Burden']  or  where  he  exceeds  his  jurisdiction,  he 
may,  by  section  2,  be  sued  as  before  the  statute,  except  Avliere  tlie  act  com- 
plained of  has  been  done  under  a  conviction  or  order,  in  which  case  "the 
conviction"  (sic  in  statute)  must  be  fii'st  quashed  —  or  if  done  under  a  war- 
rant for  appearance  followed  by  a  conviction  or  order,  the  conviction  or 
order  must  be  first  quashed — [or  if  such  warrant  be  not  followed  by  con- 
viction or  order  or  be  upon  information  for  an  indictable  offence,  still  no 
action  can  be  maintained  if  a  summons  was  previously  served  and  disobeyed]. 
See,  as  to  the  construction  of  this  section,  Learyx.  Patrick,  15  Q.  B.  266; 
Newhould  v.  Coltman,  6  Exch.  189;  Haylock  v.  Sparke,  1  E.  &  B.  471 ;  [Pease 
V.  Chaytor,  on  demurrer,  1  B.  &  S.  658 ;  31  L.  J.  M.  C.  1 ;  on  motion,  3  B.  &  S. 
620;  Pedley  v.  Davies,  10  C.  B.  N.  S.  492;  30  L.  J.  C.  P.  374;  Bessell  x.  Wil- 


988  cuEPi'S  V.  dui:ui:n   r.r  alius. 

son,  1  E.  &  B.  480;  Lnmrenson  V.  /////,  10  Ir  V.  L.  U.  177;  Lnlor  v.  Bland,  8 
Ir.  C.  L.  U.  11");  ami  Bolt  v.  Arn»/,l,  Q.  H.  2,s  L.  .1.  M.  C.  207,  whcro  tlio  obj.-L- 
tion  to  a  conviction  and  warrant  of  connnitnient  was  tliat  tlic  justices  had 
signed  it  leaving  l)laiiks  for  tlie  amount  of  costs,  but  tiiis  omission  was  held, 
in  an  action  for  false  imprisonment  against  the  justices  brougiit  after  the 
conviction  had  been  quashed,  to  be  an  erroneous  exercise  (jf  jurisdiction 
only,  and  not  an  excess.] 

The  summons  mentioned  in  the  statute,  the  non-attendance  upon  which  is 
to  bar  the  maintemince  of  an  action,  is  a  summons  hi/nrf  conviction;  the 
section  does  not  apply  to  a  summons  and  warrant  issued  after  convicti(m, 
with  a  view  to  the  levying  of  the  penalty  imposed,  Btsstll  v.  Wilxnii,  1  E.  & 
B.  489.  In  Barton  v.  BrickmU,  i;{  Q.  B.  :$;»;i,  an  action  of  trespass  was 
brought  against  a  justice  for  wrongfully  seizing  the  plaintilPs  goods.  It 
appeared  tliat  the  defendant  hail  convicted  the  plaintitl'  under  the  'ill  far.  2, 
c.  7  (for  Sunday  trading),  in  a  penalty  anil  costs  to  be  levied  by  distress. 
The  conviction  directed  that  in  ca.se  of  non-payment,  and  if  there  should  be 
no  distress,  the  plaintitt"  should  be  put  in  the  stocks  for  two  hours,  unless  the 
penalty  and  costs  were  sooner  i)aiil.  The  goods  of  the  plaintitV  were  dis- 
trained, and  the  conviction  was  quashed  on  a<-count  of  the  illegal  altermitive 
contained  in  it,  as  to  the  stocks.  It  was  lu'ld  that  tiie  defendant  was  protected 
under  sect.  1  of  this  statute,  and  that  sect.  2  did  not  apply,  as  the  dffindnnt 
had  jurisdirtion  to  ordir  thr  distress,  in  resjjcct  of  which  alone  the  action  was 
brought. 

Sect.  3  i)rotects  a  justice  hmill  fide  granting  a  warrant  upon  tiie  conv  iction 
of  another  justice,  winch  is  defective  for  want  of  jurisdiction,  and  nnikes 
the  convicting  justice  alone  liable. 

Sect.  4  prohibits  actions  by  |)arties  rated  to  the  poor,  though  not  liable  to 
be  rated,  or  in  respect  of  any  defect  in  such  rate  against  the  justices  issuing 
a  distress  warrant  thereon,  —  and  further  provides  that  the  exercise  of  dis- 
cretionary powers  vested  in  a  justice  by  statute,  shall  not  furnish  ground  of 
ection. 

By  sect.  5  [if  a  justice  refuses  to  do  any  act  relating  to  the  duties  of  his 
office],  the  Court  of  t^neen's  Bench  [may  order  him  to  do  the  act,  and  he  will 
not  be]  liable  to  [any  proceeding  for  having  obeyed  the  order.  It  has  been 
held  that  this  section  only  applies  if  the  act  be  one  by  which  the  justices 
incur  liability,  Re(j.  v.  Percy,  L.  It.  9  Q.  B.  64,  but  in  the  later  case  of  Iie(j.  v. 
PhilUmore,  14  Q.  B.  D.  474,  note,  the  court  considered  that  this  rule  would 
narrow  the  operation  of  the  statute  too  much,  though  they  declined  to  lay 
down  any  absolute  nde  as  to  when  the  proceeding  should  be  under  this 
section,  and  when  by  mandamus.]  The  court  acts  upon  this  section  where 
justices  refuse  to  determine  a  case  over  which  they  liave  jurisdiction,  [and  a 
mandamus  to  them  to  hear  and  determine  the  case  would  issue,  B.  v.  Cotton, 
15  Q.  B.  5G9;  R.  v.  Justices  of  Bristol,  18  Jur.  426,  in  nota ;  S.  C.  3  E.  &  B. 
479,  in  notci ;  R.  v.  Paijnter,  7  E.  &  B.  328  ;  R.  v.  Dayman,  ib.,  672 ;  7?.  v.  Dunn, 
7  E.  &  B.  220;  but  not  where  the  refusal  is  merely  fonnal,  and  made  for  the 
purpose  of  eliciting  the  opinion  of  the  court,  and  deciding  the  case  according 
to  the  opinion  given,  R.  v.  Pcujnter ;  R.  v.  Dayman. 

It  is  sometimes  a  nice  question  wliether  tlie  justices  have  declined  jurisdic- 
tion, or  wlietlier  they  have  adjudicated,  R.  v.  Broicn,  7  E.  &  B.  757;  R.  v. 
Paynter ;  R.  v.  Dayman;  R.  v.  Tlie  Mayor,  &c.,  of  Rochester,  7  E.  &  B.  910; 
R.  V.  Wood,  5  E.  &  B.  49:  and  R.  x.  Padicick,  8  E.  &  B.  704,  in  which  case 
tlie  dismissal  1>y  (|uarter  sessions  of  an  ajipeal  for  want  of  jurisdiction  was 


CIIEPPS    V.    DURDEN    ET    ALIOS.  989 

held  to  be  a  decision  within  tlie  meaning  of  12  &  13  Vict.  c.  45,  s.  5.  See 
also  Carr  v.  Strinrjer,  E.  B.  &  E.,  where,  though  an  appeal  did  not  lie,  yet  the 
court  entertained  the  question  so  far  as  to  examine  -whether  they  had  juris- 
diction, and  to  give  costs  to  the  respondent :  and  see  Ex  parte  Monroe,  8  E.  & 
E.  822]. 

But  the  court  refused  to  make  an  order,  directing  justices  to  issue  a  war- 
rant of  distress,  where  the  liability  of  the  person  against  whom  it  was 
sought  appeared  seriously  doubtful,  R.  v.  Browne,  13  Q.  B.  654.  [Orders  to 
issue  warrants  of  distress  were  made  in  R.  v.  Justices  of  Kingston-npon- 
Thames,  E.  B.  &  B.  2oG;  R.v.  Bradshaic,  29  L.  J.  M.  C.  176;  R.  v.  Eastern 
Counties  Rail.  Co.,  5  E.  &  B.  974;  R.  v.  Lindford,  7  E.  &  B.  950;  R.  v.  Boteler, 
33  L.  J.  M.  C.  101 ;  R.  v.  Higginson,  31  L.  J.  M.  C.  189 ;  In  re  Hartley,  31  L.  J. 
M.  C.  232;  —  to  sign  an  order  for  the  preferment  of  an  indictment  in  R.  v. 
Arnold,  8  E.  &  B.  550.]  On  a  motion  against  a  magistrate  under  this  section, 
the  general  rule  is,  that  the  court  will  order  the  unsuccessful  partj^  to  pay 
costs,  and  will  not,  on  the  motion  for  costs,  enter  into  the  merits  of  the 
original  application,  R.  \.  Ingham,  17  Q.  B.  884. 

Sect.  6  makes  the  confirmation  of  a  conviction  or  order  on  appeal  a  pro- 
tection to  a  justice  who  issues  a  warrant  upon  it  either  befoi'e  or  after  such 
contirraation. 

Sect.  7  empowers  a  judge  to  set  aside  the  proceedings  in  any  action  brought 
against  a  justice  contrary  to  the  provisions  of  the  act :  and  every  action 
against  justices  must  be  brought  within  six  months  after  the  act  complained 
of  (sect.  8),  and  not  until  after  a  month's  notice  in  writing,  &c.  (sect.  9), 
[the  notice  must  be  given,  although  the  cause  falls  within  the  first  section  of 
the  act,  Kirby  v.  Simpson,  10  Exch.  358.  In  cases  Avithin  that  section  the 
notice  should  show  that  the  act  charged  was  malicious,  Taylor  v.  Nesjield,  3 
E.  &  B.  724.  It]  may  be  given  before  the  quashing  of  the  order,  the  act  com- 
plained of  being  the  cause  of  action,  although  the  action  itself  cannot  be 
brought  until  after  the  quashing,  HayJock  v.  Sparke,  1  E.  <&  B.  471. 

Sect.  10  makes  the  venue  in  the  action  local  \_{qua're  as  to  the  effect  of  the 
Judicature  Acts,  1873,  1875,  which  abolish  generally  local  venues,  except 
where  otherwise  provided  by  statute,  Ord.  XXXVI.  Rule  1,  but  provide,  Ord. 
XIX.  Rule  12,  that  every  defence  of  not  guilty  by  statute  shall  have  the  same 
efl'ect  as  hei'etof ore)  ] ,  and  gives  the  defendant  an  option  to  plead  the  general 
issue,  and  under  it  prove  the  special  facts,  and  also  gives  him  the  privilege 
of  exemption  from  the  jurisdiction  of  the  county  court.  [See  Weston  v. 
Sneyd,  1  H.  &  N.  703.] 

By  sect.  11a  recovery  of  less  than  the  amount  tendered  or  paid  into  court 
gives  him  a  verdict  with  the  security  of  the  sum  paid  into  court  for  his  costs ; 
and  by  sect.  12  the  verdict  is  to  be  against  the  plaintifl*,  or  he  is  to  be  non- 
suited, if  he  has  not  complied  with  the  above-mentioned  pi'eliminaries. 

Sect.  13  provides  that  the  plaintifl'  shall  not  in  any  case  recover  more  than 
two  pence  damages  Avhere  it  appears  that  he  was  guilty  of  the  oflence  of 
which  he  was  convicted,  or  liable  by  law  to  pay  the  sum  ordered  to  be  paid, 
and  that  he  has  undergone  no  greater  punishment  than  that  assigned  by  law 
to  the  oflence  of  which  he  was  convicted,  or  for  non-payment  of  the  money 
ordered  to  be  paid. 

By  sect.  14  tlie  plaintifl'  is  to  have  costs,  as  befoi'e  the  act,  and  where  the 
act  complained  of  is  stated  to  have  been  done  maliciously,  &c.,  they  are  to  be 
taxed  as  between  attorney  and  client,  and  in  all  cases  wliere  there  is  judg- 
ment against  him  he  is  to  pay  costs  as  between  attorney  and  client. 


9;Hj  (JlCKl'l'S    V.    1)L1M)KN     KT    Al.los. 

Siicli  is  a  snmmar)'  of  tlio  provisions  of  this  importaiii  sianito. 

Tlie  conviction  [or  oriierj  may  i)o  drawn  np  at  any  tinie  before  it  is  returned 
to  tlie  quarter  sessions  [see  tlie  11  &  12  Vict.  c.  4:5,  s.  14,]  so  tliat  th(>u:;li  it 
may  l)c  informal  at  llrst,  the  ma<j;istrate  has  an  opportunity  of  aineiidini";  it; 
and  it  lias  been  declared  to  be  not  only  leyal  l)ut  laudable  so  to  do,  It.  v. 
Baiker,  1  East,  180.  Unless,  indeed,  it  have  been  quashed  or  its  invalidity 
otherwise  ascertained  by  the  decision  of  a  superior  court,  as  for  instance,  by 
the  Queen's  Bench  on  Habeas  Corpus,  Chaney  v.  Payne,  1  Q.  B.  725.  But  it 
would  seem  that  after  an  invalid  conviction  has  been  tiled  at  sessions,  an- 
other mij;ht  be  substituted.  A',  v.  Richards,  5  Q.  B.  92(;.  But  the  rule  is  ditlVr- 
ent  in  case  of  an  order,  R.  v.  Justices  of  Cheshire,  5  B.  &  A.  4:50.  [And  see  as 
to  tlic  amendment  of  orders  made  by  justices,  12  &  1:5  Vict.  c.  4.j,  s.  7;  R.  v. 
Iliijhnui,  7  E.  &  B.  557;  R.  v.  Ltindie,  31  L.  J.  M.  C.  157.  Even  in  the  case 
of  a  conviction,  where  a  rule  nisi  had  been  obtained  for  a  ctrtiorari  to  brim; 
up  a  bad  conviction,  and  after  tiie  conviction  had  been  returneil  to  the  cKrk 
of  the  peace  and  filed,  the  magistrate  drew  up  a  fresh  and  corrected  convic- 
tion, it  was  held  that  the  cirtiorari  should  go.  Ex  parte  Austin,  50  L.  J.  M. 
C.8.] 

In  Griffith  v.  Harries,  2  M.  &  W.  3;}5,  it  was  stated  by  Baron  Parke,  that  in  a 
case  of  Dimsdale  v.  Clarke,  a.d.  1829,  he  and  Mr.  J.  Littledale  ilillered  from 
Mr.  J.  Bayley  on  the  question  whether  it  be  necessary  that  the  nuiiristrate's 
jurisdiction  should  ap[)viir  ajlirmalicely  on  the  conviction,  Mr.  J.  Bayley  tliink- 
iufj  that  it  need  not;  but  see  Day  v.  Kin</,  5  A.  &  C.  359;  Ji.  v.  Leins,  8  A.  & 
E.  885. 

As  the  law  re»iardin<j  summary  coniictions  before  justices  is  of  great  and 
daily  increasing  importance,  on  account  of  the  immense  variety  of  subjects 
which  fall  within  this  sort  of  jurisdiction,  it  seems  advisable  to  [make  some 
general  remarks  on  it]. 

A  conviction  before  a  justice  or  justices  of  the  peace  without  the  interven- 
tion of  a  jury  is  always  under  some  statute;  the  common  law  knows  of  no 
such  proceeding.  It  [has  been]  regarded  by  the  courts  with  no  particular 
favour,  and  [formerly  the  justice  was  obliged],  on  the  record  of  it,  to  show 
[in  detail]  that  he  hail  proceeded  7-ecto  ordine.  So  much  precision  was  re- 
quired in  drawing  it  up,  that  nuigistrates  and  their  clerks  were  under  consid- 
erable difliculty,  and  ran  considerable  risk  in  framing  it.  For  their  ease  and 
protection  stat.  3  Geo.  4,  c.  23,  provided  a  general  form  [which,  however, 
■was  only  applicable  where  no  particular  form  had  been  given,  and  required 
the  evidence  to  be  set  forth.  This  statute  lias  been  repealed,  and  nearly  all 
difficulty  in  framing  a  conviction  removed,  bj'  one  of  the  three  Jervis's  acts 
relating  to  justices  acting  out  of  quarter  sessions  (the  third  of  which,  11  & 
12  Vict.  c.  44,  has  been  above  epitomised),  namely  by  the  Summary  Convic- 
tions and  Orders  Act,  11  &  12  Vict.  c.  43,  which  gives  short  forms  of  con- 
victions and  of  proceedings  to  obtain  and  enforce  them],  and  does  away  with 
the  eflect  of  variances  and  defects  both  in  substance  and  form  in  [several 
parts  of]  the  proceedings  themselves.  [This  act,  with  the  acts  of  42  &  43 
Vict.  c.  49  and  47  &  48  Vict.  c.  43,  and  any  future  acts  amending  these  acts, 
are  now  to  be  styled  "The  Summary  Jurisdiction  Acts,"  see  42  &  43  Vict.  c. 
49,  s.  50.  For  tlie  forms  contained  in  the  Scliedule  to  11  &  12  Vict.  c.  43 
others  have  been  substituted  by  the  rules  drawn  up  under  s.  29  of  42  &  43 
Vict.  c.  49  and  ss.  4,  12  of  47  &  48  Vict.  c.  43.     See  post,  p.  711.] 

The  first  section  [of  11  &  12  Vict.  c.  43]  directs  that  in  all  cases  where  an 
information  (wliich  need  not  be  on  oath  unless  a  warrant  issues  in  the  first 


CREPPS    y.    BURDEN    ET    ALTOS.  991 

instance,  sect.  10)  is  laid  before  a  justice  or  justices,  or  complaint  made 
(whicli  need  not  be  in  xoritiwj  unless  tlie  statute  require  it,  sect.  8),  a  sum- 
mons may  issue  according  to  the  form  in  the  schedule  [as  to  the  mode  of 
service,  see  ioer  Quain,  J.,  Recj.  v.  Smith,  L.  R.  10  Q.  B.  609]  ;  and  by  sect.  2, 
in  case  of  non-appearance,  upon  proof  on  oath  of  due  service  of  tlie  sum- 
mons, what  shall  he  deemed  by  the  justice  a  reasonable  time  before  the  ap- 
pointed day,  [see  Reg.  v.  Smith,  L.  R.  10  Q.  B.  604,]  he  may,  upon  the  infor- 
mation or  complaint  being  substantiated  on  oatli,  issue  his  warrant  according 
to  tlie  form  in  tlie  schedule:  or  in  cases  of  convictions,  where  the  original 
information  is  upon  oath,  he  may  issue  such  warrant  in  the  first  instance,  or 
in  cases  where  a  summons  issues  without  appearance,  upon  proof  on  oath  of 
due  service,  a  reasonable  time  (not  as  in  case  of  issuing  a  warrant  what  shall 
be  deemed  by  the  justice  a  reasonable  time)  before  the  day  appointed  he  may 
proceed  ex  parte,  and  adjudicate ;  and  it  is  provided  by  sect.  1,  —  that  no  objec- 
tion shall  be  allowed  to  any  information,  complaint  or  summons  for  any  alleged 
defect  therein  ' '  in  substance  or  in  form,"  —  or  for  any  variance  in  the  evidence ; 
but  if  considered  by  the  justice  prejudicial  to  the  defendant,  the  case  may  be 
adjourned.  [See  Whittle  v.  Franliand,  31  L.  J.  M.  C.  81.  Where  the  sum- 
mons was  for  drunkenness  and  riotous  behaviour,  contrary  to  a  special  act,  a 
conviction  for  drunkenness  only  was  quashed,  Martin  v.  Pridgeon,  28  L.  J.  M. 
C.  179;  and  see  R.  v.  Briclhall,  33  L.  J.  M.  C.  156.] 

Sect.  3  contains  a  similar  provision  as  to  warrants,  with  a  similar  power  of 
postponement,  and  in  the  meanwhile  commitment  or  enlargement  upon  recog- 
nizances according  to  fonns  in  the  schedule. 

Sect.  4  directs  the  mode  in  which  the  ownership  of  property  is  in  certain 
cases  to  be  stated. 

Sect.  5  makes  aiders  and  abettors  in  the  commission  of  offences  punishable 
by  summary  conviction  liable  to  the  same  punishment  as  principles. 

Sect.  6  extends  the  provisions  of  11  vfc  12  Vict.  c.  42,  to  this  act,  [but  is  not 
controlled  by  the  35th  sect,  of  11  &  12  Vict.  c.  42,  see  26  &  27  Vict.  c.  77. 
Bradfnxl  Union  v.  Clerk  of  the  Peace  for  Wilts,  L.  R.  3  Q.  B.  604;  37  L.  J.  M. 
C.  129.] 

Sect.  7  gives  the  justice  power  to  enforce  the  attendance  of  any  material 
witness  within  his  jurisdiction,  in  the  same  manner  as  a  defendant,  and  to 
commit  for  seven  days  any  witness  refusing  to  be  sworn  or  to  answer. 

Sect.  11  gives  six  months  after  the  cause  has  arisen,  in  the  absence  of  spe- 
cial enactment,  as  the  time  for  complaint  or  information.  [See  Eddleston  v. 
Francis,  7  C.  B.  N.  S.  568;  Lababnondiere  v.  Addison,  1  E.  &  E.  41  :  Reeve  v. 
Yeates,  1  H.  &  C.  435 ;  Morant  v.  Taylor,  1  Ex.  D.  188,  45  L.  J.  M.  C.  78 ;  Cog- 
gins  V.  Bennett,  2  C.  P.  D.  568.] 

Sects.  12  (slightly  modified  by  47  &  48  Vict.  c.  43,  s.  4,)  13  (also  similarly 
modified),  14,  and  16  (also  modified  as  above),  contain  precise  directions  as  to 
the  mode  in  which  the  heai'ing  upon  complaint  and  information  is  to  be  con- 
ducted. [As  to  s.  14,  see  Ex  parte  Hayioard,  32  L.  J.  M.  C.  89 ;  Davis  v.  Sc.race, 
L.  R.  4  C.  P.  172 ;  38  L.  J.  M.  C.  79  ;  Morgan  v.  Hedger,  L.  R.  5  C.  P.  435 ;  Reg. 
V.  Hutchins,  5  Q.  B.  D.  353;  and  as  to  s.  16,  see  Gelen  v.  Hall,  2  H.  &  N.  739.] 

The  seventeenth  section  provided  for  the  use  of  the  forms  of  convictions 
and  orders  in  the  schedule  to  the  act ;  [but  by  the  Summary  Jurisdiction  Act, 
1884,  s.  55,  is  repealed  so  much  of  this  section  "  as  specifies  any  form  of  con- 
viction or  order  for  which  another  form  is  provided  by  a  rule  under  the  Sum- 
mary Jurisdiction  Acts."  The  validity  of  forms  so  provided  is  established 
by  s.  29  of  the  Summary  Jurisdiction  Act,  1879,  explained  by  s.  12  of  the 


992  ,  f'lM-'.iM's   V.   i>ri:i)i;N    i:i'    \i.n»s. 

Siiinniary  Jurisdiction  Act,  l.s.s4,  ami  the  rules  ami  forms  now  in  force  will 
be  found  in  tiie  Weekly  Notes  of  Oct.  0,  IHHC.  By  rule  M  it  is  jirovided  that 
the  forms  in  the  schedule  to  the  rules  or  forms  to  tlie  like  ellV-ct  nniy  be  used 
with  such  variations  as  the  circumstances  may  require.  Hy  rule  :{'_',  the  forms 
in  the  schedule  to  11  &  12  Vict.  c.  43,  are  annulled.  It  will  be  seen  that  —  In 
convictions  (part  I.,  forms  11  — 17)  neither  (1)  the  infurmatinn  —  (2)  the 
stnnmons  —  (3)  the  appearance  or  non-appearance  of  the  defendant  are  to  be 
mentioned  —  and  (4)  the  evidence  is  not  to  be  set  forth. 

The  requisites  of  a  conviction,  which  fannerhj  must  have  i)een  recorded  in 
it,  arc  :  — ] 

1.  The  information,  which  [has  been  usuallj'  stated  t(»  be]  al)solutely  essen- 
tial in  all  cases,  cxceptiuii  wlierc  the  justice  is  empowered  to  convict  on  view 
(see  1  Wm.  Saund.  2(12,  note,  Jones  v.  Oiren,  2  I).  &  U.  fiOO).  It  [has  been 
reiijarded  as]  (he  foundation  of  his  jurisdiction  over  the  case,  without  which 
his  procecdinj;  would  be  void  (see  R.  v.  Jiolton,  1  Q.  B.  (!G),  [lilake  v.  Beech, 
1  Ex.  I).  320,  45  L.  J.  M.  C.  Ill;  and  though  souje  of  the  dicta  in  liefj.  v. 
Ihtfjhcs,  4  Q.  B.  D.  G14,  48  L.  J.  M.  C.  1.">1,  appear  somewhat  inconsistent  with 
this  view,  the  decision  seems  merely  to  nesfttive  the  necessity  of  any  formal 
information  where  not  required  by  statute].  The  same  principle  applies 
to  other  limited  jurisdictions  created  by  statute;  thus,  a  presentment  is  the 
fountlation  of  the  jurisdiction  of  commissioners  of  sewers,  and  if  there 
be  not  one  their  rate  is  void,  Winr/ate  v.  Waitf,  (>  M.  &  W.  73i>;  and  see  the 
judfiuieut  in  Doe  v.  Bristol  and  Kxeter  Rail  Co.,  ("•  M.  &  W.  320;  R.  v.  Cruke, 
Cowp.  2(1;  and  Christie  v.  Unicin,  11  A.  &  K.  373,  where  the  same  principle 
was  held  to  apply  even  to  the  exercise  of  an  autliority  conferretl  by  statute 
on  the  chancellor;  see  also  R.  v.  (iitardiatis  of  Hartley  Union,  1  B.  B.  r>77; 
[Lee  v.  Rowley,  8  E.  &  B.  857;  and  In  Re  Hopper  v.  Warhtirton,  32  L.  J.  Q.  H. 
104.] 

The  information  need  not  have  been  in  irridnf/  or  even  on  oath,  unless  ex- 
pressly directeil  l)v  an  act  of  parliament  to  be  so,  Bastm  v.  Careir,  3  B.  &  C. 
649;  IRerf.  v.  Hityhrs,  4  Q.  B.  D.  014,  48  L.  J.  M.  C.  151].  By  the  11  &  12 
Vict.  c.  43,  s.  10,  whenever  the  justice  issues  a  warrant  in  the  first  instance 
without  summons,  the  information  must  be  upon  oath. 

[Objections  cannot  now  usually  be  taken  to  the  information  for  defects  in 
substance,  or  form,  or  for  variances  between  it  and  the  evidence,  11  &  12 
Vict.  c.  43,  ss.  1  and  9;  still,]  care  sliould  be  taken  in  framing  it,  since  it 
[has  been  usually  considered  to  be]  the  foundation  of  the  magistrate's  juris- 
diction. Care  V.  ^founta^n,  1  M.  &  Gr.  257;  Carpenter  v.  .\fason,  12  A.  &  E. 
629. 

When  there  is  no  act  giving  a  particular  form,  it  is  sudicient  if  the  juris- 
diction is  substantially  made  apparent  in  the  documents,  or  can  be  inferred 
therefrom,  Taylor  v.  Clemson,  per  Tindal,  L.  C  J.,  2  Q.  B.  1032;  [see  Ex 
parte  Baker,  7  E.  &  B.  697].  Before  the  11  &  12  Vict.  c.  43  [ss.  1  &  9,  the 
evidence  would  not]  supply  omissions  in  tlie  information,  for  the  office  of 
the  evidence  is  to  prove,  not  to  supply  a  legal  charge,  R.  v.  Wheatmain,  Dougl. 
232;  Wiles  v.  Cooper,  3  A.  &  E.  528.  It  should  state  — the  day  on  which  it  is 
exhibited ;  and  the  statement  of  a  day  inconsistent  with,  or  insufficient  to 
warrant  the  conviction,  formerly  vitiated  it,  R.  v.  Kent,  2  Lord  Kaym.  1546. 

It  should  state  —  the  place  of  exhibiting,  that  the  magistrate  may  aiii)ear 
to  have  been  acting  within  his  jurisdiction,  see  R.  v.  Kite,  1  B.  &  C.  101 ;  and 
R.  V.  Martin,  2  Q.  B.  1037;   Re  Peerless,  1  Q.  B.  143. 

The  name  of  the  informer  should,  it  seems,  be  set  forth,  that  the  defendant 


CKEPPS    Y.    DUKDEN    ET    ALIOS.  993 

maj-  know  who  is  accusing  liim;  in  some  eases,  at  all  events,  it  is  necessary, 
see  R.  V.  Stone,  2  Lord  Ra.vm.  1545. 

It  should  state  —  the  name  and  st^le  of  the  convicting  justice  or  justices, 
and  show  that  he  is  acting  within  his  jurisdiction.  See  Kite's  Case,  1  B.  &  C. 
101;  R.  V.  Martin,  2  Q.  B.  103G ;  Re  Peerless,  1  Q.  B.  143;  R.  v.  Inhabitants 
of  St.  George,  Bloomshunj,  4  E.  &  B.  520.  Thus  it  [was  before  the  statute 
above  mentioned  held  not  to]  be  enough  to  state  that  he  is  justice  in  the 
county,  without  stating  that  he  is  of  or  for  the  county,  R.  v.  Bobbyn,  Salk. 
473 ;  —  the  name  of  the  offender  or  offenders,  R.  v.  Harrison,  8  T.  R.  508  ;  the 
time  of  the  offence,  so  that  the  information  may  appear  to  have  been  laid  in 
due  time,  R.  v.  PuUen,  Salk.  369 ;  R.  v.  Chandler,  Salk.  378 ;  R.  v.  Crisp,  7 
East,  389; — the  place,  that  it  may  appear  to  have  been  within  the  justice's 
jurisdiction,  Kite's  Case,  1  B.  &  C.  101,  et  notam ; — lastly,  the  charge  should 
be  set  forth  with  proper  and  sufficient  certaint}%  and  contain  every  ingredient 
necessary  to  constitute  the  offence,  leaving  nothing  to  mere  inference  or  in- 
tendment. "  A  conviction,"  to  use  the  words  of  Lord  Holt,  "  must  be  certain, 
and  not  taken  by  collection,"  R.  \.  Fuller,  1  Lord  Raym.  509  ;  R.  v.  Trelaivneij, 
1  T.  R.  222. 

Genei'ally  speaking,  it  is  sufficient  to  state  the  offence  in  the  words  of  the 
act  creating  it ;  see  R.  v.  Speed,  1  Lord  Raym.  583 ;  Davis  v.  Nest,  6  C.  &  P. 
167;  Ex  parte  Pain,  5  B.  &  C.  251;  [/«  re  Perham,  5  H.  &  N.  30;  ]VaIsby  v. 
Anley,  30  L.  J.  M.  C.  121 ;  and  by  42  &  43  Vict.  c.  49,  s.  39,  sub-s.  1,  it  is  ex- 
pressly enacted  with  i-eference  to  proceedings  before  courts  of  summary 
jux'isdiction  that  "  The  description  of  any  offence  in  the  ■\\t)rds  of  the  act,  or 
an}'  order,  bye-law,  regulation,  or  other  document  creating  the  offence,  or,  in 
similar  words,  shall  be  sufficient  in  law."]  Cases,  however,  may  occur  in 
which  the  words  ol  the  statute  are  so  general  as  to  render  some  more  cer- 
tainty in  the  conviction  necessary;  per  Denison,  J.,  R..  v.  Jarvis,  1  Burr.  154; 
Ex  parte  Hawkins,  2  B.  &  C  31 ;  R.  v.  Perrott,  3  M.  &  C.  379. 

[Previously  to  the  passing  of  11  &  12  Vict.  c.  43,  it  was  held  that]  excep- 
tions in  the  statute  creating  the  offence  should  be  negatived  where  they 
appear[ed]  in  the  clause  creating  the  offence,  R.  v.  Clarke,  1  Cowp.  35;  R.  v. 
Jukes,  8  T.  R.  542 ;  though  it  [■\\as]  otherwise  when  they  occur[red]  by  way 
of  proviso  in  subsequent  clauses  or  statutes,  Cathcart  v.  Hardj,  2  M.  &  S. 
534;   Spiers  v.  Parker,  1  T.  R.  141 ;  R.  v.  Hall,  1  T.  R.  320. 

The  11  &  12  Vict.  c.  43,  s.  14,  enacts,  that  whenever  in  cases  of  summary 
convictions  the  information  or  complaint  negatives  any  exception,  proviso,  or 
condition,  it  shall  not  be  necessary  for  the  complainant  to  prove  the  negative, 
but  the  defendant  may  prove  the  affirmative  in  his  defence.  [See  Tennant  v. 
Cumberland,  1  E.  &  E.  401;  Davis  v.  Scrace,  L.  R.  4  C.  P.  172;  38  L.  J.  M.  C. 
79;  Morgan  v.  Hedger,  L.  R.  5  C.  P.  485;  and  by  42  &  43  Vict.  c.  49,  s.  39, 
sub-s.  2,  it  is  further  provided  that  in  proceedings  before  courts  of  summary 
jurisdiction,  "  any  exception,  exemi^tion,  proviso,  excuse,  or  qualification, 
whether  it  does  or  does  not  accompany  in  the  same  section  the  description  of 
the  offence  in  the  act,  order,  bye-law,  regulation,  or  other  document  creating 
the  offence,  may  be  proved  by  the  defendant,  but  need  not  be  specified  or 
negatived  in  the  information  or  complaint,  and,  if  so  specified  or  negatived, 
no  proof  in  relation  to  the  matter  so  specified  or  negatived  shall  be  required 
on  the  part  of  the  informant  or  complainant."] 

There  are  many  cases  where  technical  words,  that  would  be  necessary  in  an 
indictment  for  the  same  oflence,  are  unnecessary  in  a  conviction ;  see  R.  v. 
Chandler,  1  Lord  Raym.  581 ;  R.  v.  Marsh,  2  B.  &  C.  717. 


994  CREPPS    V.    DUKDEN    ET    ALl<»s. 

Although  the  information  must,  in  order  to  give  tlio  magistrate  jurisdic- 
tion, state  an  offence  of  wliicli  lie  has  a  right  to  taivc  cognisance,  it  need  not 
state  evidence  sudicient  to  support  such  a  cliarge,  for  it  is  tlie  chariji'  wliich 
gives  the  jurisdiction,  Cave  v.  Mountain,  1  M.  &  G.  2(51;  li.  v.  Bolton,  1 
Q.  B.  OG. 

2.  Tliat  tiic  defendant  was  summoned  or  l)rouglit  up  by  warrant ;  for  it 
would  be  contrary  to  natural  justice  to  convict  witliout  giving  liini  an  oppor- 
tunity of  being  lieard.  Painter  v.  Liverpool  Gas  Co.,  3  A.  &  E.  4;5.'} ;  and  see  li. 
V.  Totness,  7  Q.  B.  690;  \_R.  v.  Li<jhtfoot,  G  E.  &  B.  822;  Cooper  v.  The  Board 
of  Works  for  the  Wandsworth  District,  32  L.J.  C.  P.  185;  Lahahnondiere  v. 
Frost,  1  El.  &  El.  527 ;  28  C.  J.  M.  C.  155 ;  Blake  v.  Beech,  1  Ex.  D.  320,  45  L. 
J.  M.  C.  Ill ;  but,  as  before  stated,  the  summons  need  not,  accordini;  to  the 
form  of  convictions  given  by  the  present  Rules,  be  mentioned  in  it. 

A  general  form  of  summons  is  given  (part  I.,  form  2,)  in  the  Summary 
Jurisdiction  Kulcs,  issc,  mentioned  aljove.]  In  some  cases  an  act  re(|uiros  a 
summons  of  a  particular  kind,  and  in  those  the  justices  have  no  jurisdiction 
if  it  be  omitted;  thus,  where  the  summons  was  to  be  ten  days  at  least  before 
conviction,  and  it  was  served  on  the  20th  to  api)ear  on  the  30th,  the  con- 
viction was  held  void,  Mitchell  v.  Foster,  'J  Dowl.  527;  12  A.  &  E.  472. 
Where  there  is  no  statutable  provision  tlie  summons  should  give  him  reason- 
able time,  li.  V.  Mallinson,  2  Burr.  (!7'.i ;  A',  v.  Juhnson,  1  Str.  2(!I;  [see  /n  re 
Williams,  21  L.  J.  4G]. 

If,  indeed,  he  appear  of  ins  own  accord,  that  will  dispense  with  a  sum- 
mons, R.  v.  Stone,  1  East,  G4D.  See  R.  v.  ./ustices  of  Wiltshire,  [12  A.  vt  E. 
793 ;  and  appearance  and  defence  cures  all  defects  in  the  summons.  A',  v. 
Johnson,  supra  ;  see  A*,  v.  Berrtj,  28  L.  J.  M.  C.  8G;  Blake  v.  Beech,  1  Ex.  D. 
320,  45  L.  J.  M.  C.  Ill  ;  and  see  AV;/.  v.  llwjhes,  4  Q.  B.  D.  G14,  4m  L.  J.  M.  C. 
151]. 

If  a  summons  be  ineflectual,  a  warrant  may,  at  least  in  some  cases,  be 
issued;  see  Bane  v.  Methiien,  2  Bing.  G3 :  but  then  the  information  ought  to 
have  been  upon  oath;  see  B.  v.  Payne,  Comberb.  359;  per  Holt,  Barnard.  34; 
and  it  is  the  opinion  of  Mr.  Parley  that  a  warrant  (in  the  absence  of  express 
enactment)  lies  only  when  the  ollonce  involves  some  breach  of  peace,  Paley, 
37,  [Gth  ed.  p.  95].  The  11  &  12  Vict.  c.  42,  now  authorises  justices  to  issue 
a  warrant  to  compel  appearance  in  all  cases  of  summary  convictions  or 
orders.  [The  warrant  or  summons  is  not  avoided  by  reason  of  the  justice, 
who  signed  the  same,  dying  or  ceasing  to  hold  office,  42  &  43  Vict.  c.  49, 
s.  37.] 

3.  The  appearance  or  non-appearance  of  the  defendant.  [This  need  not 
now,  according  to  rules  above  referred  to,  be  stated  in  the  conviction.]  If, 
being  summoned,  he  do  not  appear,  he  may  nevertheless  be  convicted,  for 
otherwise  any  defendant  might  escape  merely  by  not  appearing,  R.  v.  Simp- 
son, 1  Str.  44;  and  see  11  &  12  Vict.  c.  43,  ss.  2,  13,  which  enable  the  justice 
to  convict  on  default  of  appearance,  or  to  issue  a  warrant  to  compel  appear- 
ance and  adjourn  the  case,  R.  v.  Kinr/shy,  15  J.  P.  Go ;  Cowp.  30. 

4.  If  the  defendant  confess,  \_the  confession  must  formerly  have  been] 
stated,  [but  see  now  the  forms  in  the  Rules  188G.  If  he  does  so,  there  is] 
no  necessity  for  evidence,  R.  v.  Hall,  1  T.  R.  320;  R.  x.  Clarke,  Cowp.  35; 
even  though  the  statute  direct  the  conviction  to  be  "  on  the  oath  of  one  or 
two  credible  witnesses " :  see  R.  v.  Hall,  uhi  supra ;  R.  v.  Gage,  Stra.  546, 
and  1  Wms.  Sauud.  262,  note;  see  11  &  12  Vict.  c.  43,  s.  14  [and  42  &  43  Vict, 
c.  49,  s.  13],  under  whicla  the  justice  may  convict  the  defendant  at  once,  or 


CKEPPS    V.    BURDEN    ET    ALIOS.  995 

make  an  order  a2:ainst  him  if    lie  admit  the  trntli   of    the  information  or 
complaint. 

5.  If  the  defendant  [did]  not  confess,  the  evidence  must  [have  been]  set 
forth,  [but  should  not  be  now,  according  to  the  forms  given  by  the  Rules  of 
1886].  It  should  be  given  in  his  presence.  It  is  not  necessary,  in  order  to 
warrant  the  conviction,  that  the  justices  should  clearly  have  come  to  a  right 
decision  in  point  of  fact.  If  there  was  evidence  from  which  any  reasonable 
person  might  have  drawn  the  same  inference  as  they  did,  they  will  do,  B.  v. 
Glossop,  4  B.  &  Ad.  61G;  A7wn.,  1  B.  &  Ad.  382.  Indeed,  the  magistrate  being 
substituted  for  a  jui-y,  his  decision  cannot  be  said  to  be  wrong  if  the  evidence 
was  such  as  might  have  been  left  to  a  jury,  and  from  which  they  might  have 
drawn  the  same  conclusion,  R.  v.  Davis,  6  T.  R.  178. 

6.  There  must  be  a  judgment  and  an  adjudication  of  the  proper  forfeiture, 
see  R.  V.  Harris,  7  T.  R.  238 ;  R.  v.  Salomons,  1  T.  R.  251 ;  R.  v.  Hawkes,  Str. 
858;  [i?.  V.  CricJdand,  7  E.  &  B.  866;  R.  v.  Williams,  18  Q.  B.  393;  and 
Labalmondiere  v.  Frost,  1  El.  &  El.  527;  28  L.  J.  M.  C.  155,  S.  C. ;  In  re  Baker, 
2  H.  &  N.  219.]  There  is,  however,  no  particular  form  of  judgment,  R.  v. 
Thompson,  2  T.  R.  18.  And  the  adjudication  may  be  good  in  part  though  it 
exceed  the  jurisdiction  of  the  justices,  provided  the  excess  be  severable,  R. 
v.  Justices  of  Wiltshire,  12  A.  &  E.  793 ;  R.  v.  St.  Nicholas,  3  A.  &  E.  79.  [See 
Cross  V.  Watts,  per  Byles,  J.,  13  C.  B.  N.  S.  247,  248 ;  32  L.  J.  C.  P.  73.]  The 
application  of  the  penalty,  where  the  act  directs  any  mode  of  applying  it, 
[has  been  held  to  be]  a  necessary  part  of  the  judgment,  Ghaddock  v.  Wilbra- 
ham,  5  C.  B.  645  :  [but  at  any  rate  in  most  cases  it  would  be  sufficient  to  fol- 
low the  forms  in  the  schedule  to  the  rules  of  1886,  which  do  not  provide  for 
the  application  of  the  penalty.]  When  [however]  the  statute  leaves  the 
application  discretionary  the  mode  in  which  the  discretion  was  exercised 
ought  [it  would  seem]  to  be  stated,  R.  v.  Dempsey,  2  T.  R.  96.  Where  the 
justice  is  to  give  costs  or  charges,  he  must  ascertain  their  amount  in  the  con- 
viction, R.  V.  Simons,  1  East,  189 ;  [Bott  v.  Acroyd,  28  L.  J.  M.  C.  207]  ;  B. 
V.  St.  Mary,  13  East,  57;  and  as  to  costs,  see  now  11  &  12  Vict.  c.  43,  s.  18,. 
[and  42  &  43  Vict.  c.  49,  s.  8,]  and  R.  v.  Barton,  13  Q.  B.  389. 

7.  Lastly,  the  conviction  should  be  subscribed,  dated  and  sealed ;  see  R.  v. 
Elwell,  Str.  794;  Basten  v.  Careio,  3  B.  &  C.  649;  and  see  11  &  12  Vict.  c.  43, 
s.  14,  which  requires  the  conviction  or  order  to  be  drawn  up  under  the  hand 
and  seal  of  the  justice.  The  reason  of  dating  it  is,  that  it  may  appear  when 
it  was  made ;  and  if  that  do  appear,  that  is  enough,  and  an  impossible  date 
might  be  rejected,  B.  v.  Picton,  2  East,  198 ;  see  B.  v.  Bellamy,  1  B.  &  C.  500. 

The  above  observations  apply  to  convictions  in  general ;  but  a  conviction 
is  the  creature  of  the  statute  law ;  and,  if  a  statute  prescribe  any  jjarticular 
form  for  it,  no  matter  what,  that  form  [except  when  otherwise  provided  by 
statute]  must  be  strictly  pursued,  Davison  v.  Gill,  1  East,  72 ;  Goss  v.  Jack- 
son, 3  Esp.  198. 

By  s.  27,  sub-s.  5,  of  the  Summary  Convictions  Act,  1879,  it  is  provided 
that  where  an  indictable  ofl'ence  is  under  the  circumstances  in  that  act  men- 
tioned, authorised  to  be  dealt  with  summarily  "  The  conviction  shall  contain 
a  statement  either  as  to  the  plea  of  guilty  of  an  adult,  or  in  the  case  of  a 
child  as  to  the  consent  or  otherwise  of  his  parent  or  guardian,  and  in  the  case 
of  any  other  person  of  the  consent  of  such  person,  to  be  tried  by  a  court  of 
summary  jurisdiction." 

[To  proceed  with  the  summary  of  the  11  &  12  Vict.  c.  43.]  The  18th  sect, 
enables  the  justice  to  order  costs  either  to  the  prosecutor  or  complainant,  or 


\)[){')  CUKI'l'S    V.    DlllDK-V    KT    ALKtS. 

to  the  defendant,  as  to  which  see  also  iln-  Siiiimiary  Corivictions  Act,  1879, 
8S.  G,  8,  &  28. 

Sects.  11)  to  21)  &  31,  relate  t(;  the  mode  in  whlcli  iieiialties  imposed,  and 
costs  ordcfed  by  justices  are,  under  various  circumstances,  to  be  recovered 
and  paid.  Sects.  10  &  20  are  partly  repealed  by  tlie  Summary  Convictions 
Act,  1874,  sched.  Sec  as  to  .sect.  23  Lcverick  v.  ^fen•('r,  14  Q.  B.  751);  [as  to 
sect.  25  R.  V.  Cutbush,  L.  R.  2  Q.  B.  379 ;  and  as  to  sect.  26  Winn  v.  Mussman, 
L.  1{.  4  Ex.  292;  38  L.  J.  Ex.  200.  Further  provisions  on  the  like  subject  are 
contained  in  the  Summary  Jurisdiction  Act,  1879,  ss.  4  to  9,  21,  24,  28,  34,  35, 
39,  43,  and  in  the  Summary  Jurisdiction  Act,  1884,  s.  3].  And  sec  as  to  the 
[proper]  mode  of  [a\vardin<;]  costs  in  cases  of  appeal  under  sect.  27  [of  11  & 
12  Vict.  c.  43],  R.  V.  llcllier,  17  Q.  B.  229;  li.  v.  JJinneif,  1  E.  &  B.  810;  and 
A'.  V.  lltintJey,  3  E.  &  B.  172;  {R.  v.  .hmtices  of  Ehj,  5  E.  &  B.  489;  Hmj  v. 
Matthews,  4  B.  &  S.  425;  33  L.  J.  M.  C.  14.  As  to  sect.  31,  see  .}/ii)/<,r  „f 
Reifjale  v.  Hart,  L.  K.  3  Q.  B.  244  ;  37  L.  J.  M.  C".  70.] 

Sect.  32  enacts  that  the  forms  in  the  sciiedule  shall  be  deemed  good,  valid, 
and  sufllcicnt  in  law,  [but  these  forms  have  now  been  annulled,  and  otiiers 
substituted,  see  ante  p.  711.] 

Sects.  33,  34,  regulate  jurisdictions  of  metropolitan  police,  and  stipendary 
magistrates;  also  of  the  lord  mayor  and  aldermen  of  London,  [l)ut  these 
sects,  do  not  apply  to  or  restrict  I  lie  operation  of  42  &  43  \'ict.  c.  49,  see  s. 
52.] 

Sect.  35  provitles  that  the  act  shall  not  extend  to  orders  of  removal,  orders 
as  to  lunatics,  [see,  however,  Bnulford  Union  v.  Clerk  of  the  Peace  for  Wilts, 
L.  K.  3  Q.  B.  604;  37  L.  J.  M.  C.  129],  nor  to  informations  concerniny  the  excise, 
customs,  stamps,  taxes,  or  post  ojjicc  [but  the  foregoing  exception  in  italics 
is  repealed  by  42  &  43  Vict.  c.  49,  s.  55],  nor  to  orders,  &c.,  in  matters  of 
bastardy,  [but  the  Summary  Jurisdiction  Act,  1879,  which  is  to  be  construed 
as  one  with  11  &  12  Vict.  c.  43,  does  "  apply  to  the  levying  of  sums  adjuilged 
to  be  paid  by  an  order  in  any  matter  of  bastardy,  or  by  an  order  which  is 
enforceable  as  an  order  of  alliliation,  and  to  the  imprisonment  of  a  defeuilant 
for  non-payment  of  such  sums,  in  like  manner  as  if  an  order  in  any  such 
matter  or  so  enforceable  were  a  conviction  on  information,  and  to  the  proof 
of  the  service  of  any  summons,  notice,  process,  or  document  in  any  matter 
of  bastardy,  and  of  any  handwriting  or  seal  in  any  such  matter,  and  to  an 
appeal  from  an  order  in  any  matter  of  bastardy,"]  nor  to  proceedings  under 
acts  regulating  the  labour  of  children  in  factories,  &c.,  [which  last  exception 
was  repealed  by  the  Factories  and  Workshops  Act,  1871,  34  &  35  Vict.  c.  104, 
s.  11 :  see  now  41  Vict.  c.  16,  s.  89]. 

An  adjudication  by  two  justices  under  the  Lands  Clauses  Consolidation 
and  Railway  Clauses  Consolidation  Acts,  1845,  as  to  the  compensation  payable 
by  a  railway  company  to  a  person  whose  lands  have  been  injuriously  aft'ected 
by  their  works,  is  [not]  an  order  v/ithin  sect.  1  of  this  act,  [R.  v.  Edwards,  13 
Q.  B.  D.  586;  53  L.  J.  M.  C.  149;  overruling  Re  Edmundson,  47  Q.  B.  67. 

By  the  Summary  Jurisdiction  Act,  1879  (42  &  43  Vict.  c.  49),  already 
referred  to,  the  powers  of  courts  of  summary  jurisdiction  have  been  materi- 
ally increased.  It  has  not  been  thought  necessary,  however,  to  set  out  the 
details  of  that  act,  nor  of  the  later  act  of  1884  (47  &  48  Vict.  c.  43)  which  is 
principally  a  repealing  and  explanatory  act. 

The  alterations  in  procedure,  so  far  as  they  relate  to  the  subject-matter  of 
this  act,  have  been  already  mentioned. 

But  the  most  important  feature  of  the  Act  of  IsTii  is  that  it  gives  power  to 


CREPPS    V.    DURDEN   ET   ALIOS.  997 

courts  of  summary  jurisdiction  to  deal  summarily  with  certain  specified 
indictable  ofTences  in  three  cases,  viz.  :  —  (1)  In  the  case  of  a  child  (i.e.,  a 
person  who,  in  the  opinion  of  the  court,  is  under  12  years),  unless  the  parent 
or  guardian  objects,  charged  with  any  ofl'ence  except  homicide;  (2)  In  the 
case  of  a  young  person  (i.e.,  a  person  who,  in  the  opinion  of  the  court,  is  of 
the  age  of  12  and  under  16  years  of  age) ,  charged  with  certain  cases  of  larceny, 
embezzlement,  and  receiving  as  specified  in  the  First  Schedule,  if  the  accused 
consents;  (3)  In  the  case  of  an  adult  {i.e.,  a  person  who,  in  the  opinion  of 
the  court,  is  of  the  age  of  16  years  or  upwards),  charged  with  the  same  class 
of  offences,  if  he  pleads  guilty,  or  with  another  class  of  similar  offences 
specified  in  the  same  Schedule,  if  he  consents.     See  ss.  10-17,  24,  27,  28. 

By  s.  17  the  right  to  claim  trial  by  jury  is  given  to  a  person  charged  before 
a  court  of  summarj'  jurisdiction,  with  an  offence  other  than  an  assault  involv- 
ing a  liability  on  conviction  to  imprisonment  for  a  term  of  more  than  three 
months. 

By  s.  19,  an  appeal  is  given  to  the  general  or  quarter  sessions  against 
certain  summary  convictions  and  orders.  See  as  to  procedure  in  appeal, 
ss.  31,  32. 

By  ss.  6,  7,  8,  and  35,  37,  special  powers  are  given  for  the  recovery  as  a 
civil  debt  of  sums  ordered  to  be  paid  by  a  court  of  summary  jurisdiction. 
See  R.  V.  Price,  5  Q.  B.  D.  300. 

By  s.  29  power  is  given  to  the  Lord  Chancellor  to  make,  rescind,  and  alter 
rules  in  relation  to  the  Summary  Jurisdiction  Acts.  The  present  rules  will  be 
found  in  the  Weekly  Notes,  Oct.  9,  1886.] 

If  a  conviction  be  void  on  the  face  of  it,  it  follows,  as  of  course,  that  [as 
a  general  rule]  no  act  done  in  pursuance  of  it  can  be  justified,  and  tliat  any 
seizure  of  person  or  property  under  it  will  form  the  subject-matter  of  an 
action,  as  will  be  seen  in  the  principal  case ;  subject,  however,  to  the  provi- 
sions of  11  &  12  Vict.  c.  44,  ante,  p.  704  et  seq. 

[Cases  there  are,  however,  in  which  the  convicting  justice,  though  he  has 
convicted  without  jurisdiction  and  his  order  ..as  been  acted  upon,  is  not  liable 
to  an  action  except  he  either  acted  mala  fide,  or  ought  to  have  known  of  his 
defective  jurisdiction.  The  class  of  cases  referred  to  is  where  the  jurisdic- 
tion of  the  justice  depends  upon  the  existence  of  a  certain  state  of  facts. 
Whether  those  facts  exist  is  a  collateral  question  Avhich  he  has  to  decide ;  and 
though  he  decide  wrongly  and  so  by  his  wrong  decision  attribute  to  himself 
and  act  upon  a  jurisdiction  which  he  does  not  possess,  he  is  not  liable  to  an 
action  merely  on  account  of  his  erroneous  decision  on  the  question  of  fact. 
Pease  v.  Cliaytnr,  3  B.  &  S.  620. 

It  is  otherwise  if  the  mistake  be  one  of  law.  See  Hnulden  v.  Smith,  14  Q. 
B.  841,  cited  by  Blackburn,  J.,  in  his  judgment  in  Pease  v.  Chaytor,  uhi  sup. 
But  until  his  erroneous  judgment  be  acted  upon  so  as  to  make  him  liable  in 
trespass  he  is  not  liable  for  his  judicial  mistake.  Sommerville  v.  Mirehouse, 
1  B.  &  S.  652.] 

But  besides  [the  remedy  by  action,]  there  are  two  modes  of  impeaching 
[convictions] ,  first  by  appeal,  secondly  bj^  certiorari. 

An  appeal,  like  a  conviction,  is  the  creature  of  the  statute  law,  and  never 
lies  unless  where  it  is  given  by  express  terms,  7?.  v.  The  Recorder  of  Ipswich, 
8  Dowl.  103;  R.  v.  Hanson,  4  B.  &.  A.  521;  [/?.  v.  Justices  af  Warwickshire, 
6  E.  &.  B.  837;  Ex  parte  Chamberlain,  8  E.  &  B.  644.  See  also  R.  v.  Justices 
of  Worcester,  3  E.  &  B.486;  R.  v.  Inhabitants  of  London,  3  E.  &  B.  bi'l;  A^-G. 
V.  Sillem,  10  H.  of  L.  Ca.  704 ;  2  H.  &  C.  581 ;  33  L.  J.  Exch.  209]. 


998  CKEprs  V.  i>uin)i:N  kt  alios. 

The  rule  with  regard  to  a  certiorari  is  tlie  very  reverse.  It  always  lies 
unless  expresslij  taken  away,  R.  v.  Abbot,  Dougl.  543;  and  it  requires  very 
strong  words  to  do  so ;  for  even  where  a  statute  gave  an  appeal  to  the  ses- 
sions, and  directed  that  it  should  be  finally  determined  there,  and  no  otlier 
court  should  intermeddle  with  the  causes  of  appeal,  it  was  held  that  a  ccrtio- 
rari  lay  after  the  appeal,  R.  v.  Moreley,  1  W.  Bl.  231 ;  R.  v.  Jukis,  8  T.  K. 
542;  see  R.  v.  Justices  of  West  Riding,  Yorkshire,  1  A.  &  E.  575;  where  it  was 
taken  away.  A',  v.  Fell,  1  B.  &  Ad.  380;  A*,  v.  Justices  of  Lancashire,  11  A.  & 
K.  144,  where  an  order  in  pursuance  of  a  statute  leaving  the  certiorari,  but 
made  by  a  town  council  empowered  by  5  &  (I  W .  4,  c.  7(i,  wiiich  takes  it  away, 
was  held  removable  by  certiorari.  The  reason  of  this  is,  that  it  is  an  ex- 
tremely beneficial  writ,  being  the  medium  througii  which  tlie  Court  of  Queen's 
Bench  exercises  its  corrective  jurisdiction  over  the  summary  proceedings  of 
inferior  courts.  [A  section  in  an  Act  of  Parliament  taking  away  the  certio- 
rari does  not  apply  where  there  has  been  an  absence  of  jurisdiction.  Ex  parte 
Bradlaugh,  3  Q.  B.  D.  509. 

Where  it  is  expressly  taken  away  ii  has  l)een  decided  that  it  cannot  issue 
even  to  bring  up  to  (juash  an  oriler  of  justices  in  (piarter  sessi(ms  condi- 
tionally allirming  a  conviction  subject  to  a  case  for  the  opinion  of  the  court. 
Reg.  V.  Chanlrell,  L.  K.  10  Q.  B.  087,  44  L.  J.  Q.  B.  1(;7.  Now,  however,  a 
certiorari  is  not  in  such  case  re*iuired,  42  &  43  Vict.  c.  4i>,  s.  40.] 

Even  where  it  is  taken  away  in  express  tenns,  they  do  not  include  the 
crown  unless  named,  A',  v.  Davies,  5  T.  II.  G26;  R.  v.  Allen,  15  East,  333;  R. 
V.  BouUbee,  4  A.  &  E.  498.  Nay,  it  is  said  that  the  attorney-general,  on  behalf 
of  the  crown,  might  in  such  case  obtain  the  writ  for  a  defendant;  see  1  East, 
303,  note,  and  the  authorities  there  cited. 

A  certiorari  is  a  writ,  issuing  out  of  the  Chancery  or  Queen's  Bench  [Divi- 
sion of  the  High  Court  of  Justice],  conunanding  the  judges  or  oMlcers  of  an 
inferior  court  to  certify  and  return  the  record  of  a  matter  before  them.  [See 
Walsall  V.  L.d:  X.  ]V.  A'.,  4  App.  Cas.,  per  Earl  Cairns,  C,  at  p.  39.]  It  is 
used  for  a  great  variety  of  i)urposes;  but  we  are  at  present  looking  only  at 
Its  applicability  to  the  case  of  a  conviction.  No  writ  of  error  lies  upon  a 
conviction ;  so  that  a  certiorari  is  the  only  mode  of  bringing  it  into  the 
Queen's  Bench  [Division]  in  order  to  reverse  it.  [See  per  Bramwell,  L.  J., 
in  Reg.  v.  Ocer.'<eers  of  Walsall,  3  Q.  B.  D.  464.  And  the  jurisdiction  of  the 
Court  of  Queen's  Bench  to  issue  the  writ  of  certiorari  formerly  applied,  and 
that  of  the  Queen's  Bench  Division  of  the  High  Court  of  Justice  now  "  ap- 
plies only  where  there  is  some  defect  of  jurisdiction  or  Informality  or  defect 
apparent  on  the  face  of  the  proceedings"  In  the  Inferior  Court,  Reg.  v.  Orer- 
seers  of  Walsall  (ubi  sup.).  The  superior  court  cannot  give  Itself  jurisdiction 
through  the  writ  of  certiorari  when  it  otherwise  possesses  none.] 

It  [has  been  held  that  a  certiorari'\  is  not,  like  a  Avrit  of  error,  granted  ex 
debito  justitice;  but  "application  is  made  to  the  sound  discretion  of  the 
court,"  R.  v.  Bass,  5  T.  R.  252;  R.  v.  Manchester  and  Leeds  Rail.  Co.,  1  P.  & 
D.  164;  B.  V.  South  Holland  Drainage  Committeemen,  1  P.  &  D.  79.  [But  in 
a  recent  case  the  Court  of  Queen's  Bench,  after  taking  time  to  consider  this 
very  point,  held  that  where  the  applicant  was  "a  party  grieved  "the  writ 
ought  to  be  treated  like  a  writ  of  error,  as  ex  debito  justitice;  but  where  the 
applicant  is  not  grieved,  but  comes  forward  merel}'  as  one  of  the  public,  the 
court  has  a  discretion.  They  held,  however,  that  the  "\\Tit  is  clearly  not  a 
matter  of  course.  The  court  must  be  satisfied  on  affidavits  that  grounds  for 
issuing  it  exist.     And  even  where  the  applicant  is  a  party  grieved,  if  he  has 


CEEITS    V.    BURDEN    ET    ALIOS.  999 

by  his  conduct  precluded  himself  from  taking  an  objection,  the  court  will  not 
permit  liini  to  malve  it.  Beg.  v.  Justices  of  Surrey,  L.  11.  5.  Q.  B.  466;  39  L.  J. 
M.  C.  145.     See  also  Reg.  v.  Sheward,  9  Q.  B.  D.  741. 

The  application  is  by  way  of  motion,  and  by  13  G.  2,  c.  18,  s.  5,  "  no 
certiorari  shall  be  granted  to  remove  any  order,  conviction,  or  other  pro- 
ceeding before  a  justice  or  at  the  sessions,  unless  it  be  applied  for  in  six 
calendar  months,  and  upon  oath  made  that  the  party  has  given  six  days-  notice 
in  writing  to  the  justice  or  justices,  or  two  of  them,  if  so  many  there  be:" 
see  E.  V.  Boughey,  4  T.  R.  281 ;  R.  v.  Bloxam,  1  A.  &  E.  386 ;  R.  v.  Inhabitants 
of  Serenoal-s,  7  Q.  B.  136;  [In  re  Hopkins,  E.  B.  &  E.  100;  R.  v.  Allan,  4  B.  & 
S.  915;  33  L.  J.  M.  C.  98;  R.  v.  Hodgson,  5  Nov.  1863,  9  Law  T.  290].  The 
notice  to  the  justices  must  be  six  days  before  the  rule  nm  is  moved  for,  one 
day  inclusive,  the  other  exclusive,  R.  v.  Gondenough,  2  A.  &  E.  463;  R.  v. 
Flounders,  4  B.  &  Ad.  865.  It  must  be  by  or  on  behalf  of  the  party  intending 
to  move,  and  must  appear  to  be  so,  R.  v.  Justices  of  Lancashire,  4  B.  &  Ad. 
289  ;  R.  V.  Justices  of  Cambridgeshire,  3  B.  &  Ad.  887 ;  E.  v.  Justices  of  Kent,  3 

B.  &  Ad.  250;  R.  v.  Justices  of  Lancashire,  3  P.  &  D.  86,  11  A.  &  E.  144,  where 
the  notice  was  held  sufficient;  R.  v.  Justices  of  Shrewsbury,  [9  Dowl.  P.  C. 
524;  S.  C.  nom.l  R.  v.  How,  11  A.  &  E.  159.  But  the  crown  seems  not  to  be 
hound  by  this  even  where  it  espouses  the  defendant's  side,  R.  v.  James,  1  East, 
303,  note;  R.  v.  Berkeley,  1  Ken.  80;  R.  v.  Battams,  1  East,  298. 

If,  upon  the  discussion  of  the  rule,  the  writ  be  granted,  it  removes  the  con- 
viction into  the  court  above,  where  it  is  quashed  if  bad ;  if  good,  it  remains 
in  the  Queen's  Bench,  unless,  indeed,  to  keep  it  there  would  occasion  a  defect 
of  justice,  in  which  case  it  may  be  sent  back  again  by  writ  of  procedendo,  B. 
V.  Kexile,  2  B.  &  Ad.  299. 

The  person  prosecuting  the  certiorari  must  by  5  G.  2,  c.  19,  enter  into 
recognizance  for  50Z.,  with  competent  sureties  to  prosecute  it  with  effect  and 
pay  costs  if  unsuccessful.  This  act  does  not,  however,  apply  to  the  case  of  a 
prosecutor  obtaining  the  writ,  R.  v.  Spencer,  9  A.  &  E.  485.  [A  writ  of 
certiorari  may  on  motion  be  superseded  quia  improvide  emanavit,  Reg.  v. 
Chanlrell,  L.  R.  10  Q.  B.  587,  44  L.  J.  Q.  B.  167. 

Where  certiorari  has  gone  to  bring  up  a  conviction  for  an  offence  under  the 
criminal  law,  no  appeal  will  lie  to  the  Court  of  Appeal,  criminal  cases  being 
expressly  excepted  from  the  jurisdiction  of  that  court  by  s.  47  of  the  Judica- 
ture Act,  1873,  see  Reg.  v.  Fletcher,  2  Q.  B.  D.  43,  46  L.  J.  M.  C.  4;  Reg.  v. 
Rudge,  16  Q.  B.  D.  459.  But  where  by  certiorari  an  order  of  quarter  sessions 
as  to  a  borough  rate  had  been  brought  into  the  Queen's  Bench  Division,  and  a 
rule  nisi  to  quasli  such  order  was  subsequently  discharged,  and  the  order  of 
sessions  was  affirmed  by  a  rule  of  the  Queen's  Bench  Division,  the  Court  of 
Appeal  were  equally  divided  as  to  whether  an  appeal  lay  from  this  last  rule. 
Bramwell  and  Cotton,  L.  JJ.,  held  that  the  jurisdiction  was  given  by  the  gen- 
eral words  of  the  19th  section  of  the  Judicature  Act,  1873 ;  whilst  Cockburn, 

C.  J.,  and  Brett,  L.  J.,  were  of  the  contrary  opinion,  being  of  opinion  that  the 
Court  of  Queen's  Bench  never  had  jurisdiction  to  quash  such  an  order  of 
sessions,  but  merely  that  a  custom  had  arisen  of  taking  the  opinion  of  the 
Queen's  Bench,  upon  which  the  sessions  acted,  and  that  therefore  there  had 
been  no  decision  of  the  Queen's  Bench  Division  on  which  an  appeal  would 
lie.  On  appeal,  the  House  of  Lords  adopted  the  view  of  Bramwell  and  Cot- 
ton, L.  JJ.,  Walsall  v.  L.  &  K  W.  R.  Co.,  4  App.  Cas.  30;  48  L.  J.  Q.  B.  65. 
No  leave  to  appeal  under  sect.  45  of  the  act  is  in  such  case  necessary,  Hling- 
vjorth  V.  BiiJiiipr  East  Highway  Board,  53  L.  J.  M.  C.  60;  and  see  Beg.  v.  Pem- 
berton,  5  Q.  B.  D.  95.] 


1000  CREPI'S    V.    DUKDEN    KT    ALIOS. 

The  Queen's  Bencl>  [Division],  excrcis'n}?  its  appellate  power  over  ft  con- 
viction removed  into  it  by  m-tinrnri,  will  not  allow  the  merits  of  tlie  case  to 
be  asjain  litififated  ui)on  ullidavit;  for  the  justices  are  the  proper  persons  to 
determine  upon  those.  11.  v.  liultun,  1  Q.  B.  {>();  li.  v.  Jitstircit  of  liurkiiuj- 
luunshirr,  3  Q.  H.  HOO :  [And  so  where  the  justices  in  tjuartcr  sessions 
quashed  a  maLcistrate's  conviction  on  the  ^rouiul  that  certain  words  of  the 
statute  on  wliicli  it  was  founded  were  omitted  in  it,  the  Queen's  IJencli  Divis- 
ion, thoui^li  holding  their  decision  to  be  erroneous,  declined  to  interfere  by 
mamhuniis,  Jit'tj.  v.  Jii.stires  of  MiddlcsfX,  2  Q.  B.  D.  510,  4(1  L.  J.  Q.  15.  74(;. 
Wliere,  however,  by  consent  of  tlie  parties,  the  (|uarter  sessions  of  a  recorder 
had  stated  a  special  case,  tlie  court  would  decide  on  certiorari  whether  the 
facts  stated  in  the  case  amount  to  the  ott'ence  charged,  even  though  the 
certiorari  were  taken  away.  A',  v.  Dickinson,  7  E.  &  B.  HSl ;  though  see  AV;/. 
V.  ChitnlreU,  L.  U.  10  Q.  B.  587,  44  L.  J.  Q.  B.  MM.  And  now,  by  s.  40  of  the 
Summary  Jurisdiction  A(!t,  1871)  (42  &  4;i  Vict.  c.  4t)),  it  is  provided  that  "a 
writ  of  rcrlinrari  or  other  writ  shall  not  be  re(|uired  for  the  removal  of  any 
conviction,  order,  or  other  determination,  in  relation  to  which  a  special  case 
is  stated  by  a  court  of  general  ortjuarter  sessions  for  obtaining  the  jmlgment 
or  determination  of  a  superior  court."] 

But  a  question  has  occasionally  arisen  whether,  in  cjises  where  the  justices 
have  proceeded  icit/iout  jurisdiction,  and  have  nevertheless  stated  upon  the 
face  of  the  conviction  matter  showing  a  jurisdiction,  it  be  competent  to  the 
defendant  to  prove  the  want  of  jurisdiction  by  allldavit.  It  certaiidy  appears 
desirable  that  the  court  should  have  the  power  to  entertain  the  t|Uestion  of 
jurisdiction.  Some  cases  miglit  easily  be  suggested,  in  which  not  only  great 
private  i)ut  great  public  inconvenience  might  arise  from  leaving  an  invalid 
order  or  conviction  unreversed,  and  great  injustice  might  l)e  caused  l)y  allow- 
ing justices  out  of  or  in  sessions,  by  nuiking  their  onler  or  conviction  good 
upon  the  face  of  it,  to  give  themselves  a  jurisdiction  over  matters  not  en- 
trusted to  them  by  law. 

Whether  a  mandamus  would  lie  in  such  a  case  to  oblige  them  to  make  a 
correct  statement,  is  a  question  which  the  Queen's  Bench  [Division]  would,  at 
least  in  the  nuijority  of  instances,  probably  answer  in  the  negative;  for 
though  it  is  true  that  in  some  cases,  where  there  has  been  a  clear  omission  of 
some  material  ingredient  in  a  conviction,  the  court  has  by  7nandamns  ordered 
it  to  be  supplied;  as  in  De  Rix,  4  D.  &  R.  ;}r)2 ;  11.  v.  Mnrsh,  4  D.  &  K.  2r,0; 
R.  V.  Warneford,  5  D.  &  U.  489;  A',  v.  Allen,  5  I).  &  B.  4!»0;  yet  this  lias  been 
done  after  the  order  or  conviction  had  been  returned  upon  a  certiorari ;  and 
it  either  clearly  appeared,  or  was  shown  by  affidavit,  to  the  court,  that  the 
whole  or  some  material  portions  of  the  evidence  had  been  omitted  ;  (see  the 
observations  of  the  court  on  these  cases  in  A*,  v.  Wilson,  1  A.  &  E.  G27;)  and 
the  mandamus  went  not  to  compel  the  court  below  to  insert  a  particular  thinfj, 
or  raise  a  particular  question,  upon  their  return,  but  merely  to  oblige  them  to 
set  out  an  integral  part  of  the  case,  which  must  have  existed,  and  had  been 
omitted.  I  saj'  must  have  existed,  because  in  H.  v.  Wilson,  where  evidence 
might  or  might  not  have  been  acted  on,  the  court  would  not  send  the  manda- 
mus. 

And  there  are  cases  in  which  the  court  has  refused  to  interfere  by  mandamus 
to  compel  the  courts  below  to  raise  a  particular  question;  for  instance,  R.  v. 
Hewes,  3  A.  &  E.  725,  the  jury  had  returned  a  verdict,  guilty  h>j  mischance; 
the  chairman  of  the  sessions  told  them  they  must  find  a  general  verdict ;  and 
they  found  a  verdict  of  guilty,  and  recommended  to  mercy  on  the  ground  that 


CREPPS    V.    BURDEN    ET    ALIOS.  1001 

the  act  was  not  done  with  a  malicious  intent.  The  motion  was  for  a  man- 
dmmis  to  set  the  clerk  of  the  peace's  mimite  right  according  to  the  facts,  in 
order  that  a  writ  of  error  might  be  sued  out.  The  rule  was  discharged.  Mr. 
Justice  Patteson  said,  "  The  case  of  a  mandamus  to  enter  continuances  and 
hear  is  not  like  this.  There  the  justices  are  ordered  merely  to  hear  an  appeal, 
and  to  enter  continuances  l)ecause  those  are  necessary  in  order  to  enable  them 
to  hear;  so,  in  tlie  present  case,  if  it  were  necessary  for  the  defendant  to 
have  a  record  made  up,  and  the  officer  refused  to  do  it,  the  party  having  a 
right  to  avail  himself  of  the  record  might  apply  for  a  mandamus,  as  in  R.  v. 
Justices  of  Middlesex,  5  B.  &  Ad.  1113.  I  have  always  understood  that  this 
court  might  send  a  mandamus  to  an  inferior  court  to  do  its  duty  in  general 
terms,  but  not  to  do  a  particidar  thing ,  as  to  make  an  alteration  here  or  there  in 
the  clerk  of  the  peace's  minutes ;  "  see  /?.  v.  Justices  of  ^fiddlesex,  9  A.  &  E. 
546,  judgment  of  Littledale  and  Coleridge,  JJ.,  and  per  curiayn  in  R.  v.  Lords 
of  the  Treasury,  10  A.  &  E.  179;  ?i.  v.  Lords  of  the  Treasury,  10  A.  &  E.  374, 
and  per  Lord  Denham  in  R.  v.  Eastern  Counties  Railway,  10  A.  &  E.  547 ;  R.  v. 
Justices  of  Buckinghamshire,  3  Q.  B.  800;  [R.  v.  Justices  of  Bristol,  18  Jur.  426, 
note  «;  R.  v.  Dayman,  7  E.  &  B.  672]. 

Supposing  that  the  court  below  cannot  be  compelled  by  mandamus  to 
show  the  defect  of  jurisdiction  upon  the  record,  the  next  question  is,  will 
the  court  above  allow  evidence  of  such  defect  of  jurisdiction  to  be  'aid 
before  it  by  way  of  affidavit,  on  the  record  being  brought  before  it  by  a  writ 
of  certiorari  ? 

In  R.  V.  St.  James's,  Westminster,  2  A.  &  E.  241,  it  was  remarked  by  Mr.  Jus- 
tice Taunton  (a  judge  whose  obiter  dicta  are  always  worthy  of  the  greatest 
attention)  that  this  has  been  constantly  done.  In  R.  v.  Inhabitants  of  Great 
Marlow,  2  East,  244,  an  appointment  of  overseers,  good  on  the  face  of  it,  was 
allowed  to  be  questioned  by  affidavit  on  the  ground  of  a  defect  of  jurisdic- 
tion, and  was  finally  quashed.  The  court  in  that  case  had  taken  time  to  con- 
sider as  to  the  practice  with  regard  to  receiving  the  affidavit ;  and  Mr.  Justice 
Lawrence  mentioned  several  similar  cases  in  which  that  course  had  been  pur- 
sued. A  similar  course  seems  to  have  been  pursued  with  an  order  of  the 
quarter  sessions  m  R.  v.  Justices  of  the  West  Riding  of  Yorkshire,  5  T.  R.  629. 
In  the  case  of  R.  v.  Justices  of  Cheshire,  1  P.  &  D.  93,  8  A.  &.  E.  400,  tlie  ques- 
tion was  a  good  deal  discussed;  and  it  seems  to  have  been  admitted  that 
affidavits  might  be  looked  at  for  the  purpose  of  showing  a  defect  of  jurisdic- 
tion. "  It  cannot  be  disputed,"  said  Mr.  Justice  Coleridge  in  that  case,  "  that 
there  are  many  cases  in  which  affidavits  may  be  looked  at  in  order  to  ascer- 
tain whether  there  was  jurisdiction  or  not;  for  suppose  an  order  made,  which 
was  good  on  the  face  of  it,  but  which  was  not  made  by  a  magistrate,  it  is 
clear  that  this  fact  may  be  shown  to  the  court."  Accord.  R.  v.  Sheffield  and 
Manchester  Rail.  Co.  [11  A.  &  E.  194]  ;  and  it  seems  to  be  settled  by  the  later 
cases  that  a  defect  of  jurisdiction  may  be  shown  by  affidavit,  though  the  pro- 
ceeding is  so  drawn  up  as  to  appear  valid  on  the  face  of  it.  [See  the  judg- 
ments in]  R.  V.  Bolton,  1  Q.  B.  66;  [The  Whitbury,  <&c..  Union  Case,  4  E.  &  B. 
314  ;  Tn  re  Penny,  7  E.  &  B.  660,  where  on  certiorari  an  inquisition  under  the 
Lands  Clauses  Act,  1845,  was  quashed  upon  affidavits  showing  that  the  jury 
in  assessing  the  damages  took  into  account  an  item  which  was  not  a  subject 
for  compensation  within  the  act  (Mortimer  v.  S.  Wales  Rail.  Co.,  E.  &  E.  375)  ; 
In  re  Hopkins,  E.  B.  &  E.  100 ;  7?.  v.  The  Recorder  of  Cambridge,  8  E.  &  B.  637 ; 
R.  V.  Metropolitan  Rail.  Co.,  32  L.  J.  Q.  B.  367;  Read  v.  Victoria  Station  and 
Pimlico  Rail.  Co.,  32  L.  J.  Exch.  167]  ;  and  R.  v.  Cheltenham  Paving  Commis- 


1002  CREITS    V.    DUUDKN    KT    ALIOS. 

siunern,  1  Q.  B.  407,  where  the  defect  consisted  in  the  presence  on  tlie  bench 
of  interested  parties  as  justices. 

On  tlie  otlier  liand,  notliinj^  can  be  more  common  than  to  llnd  it  laid  d(nvn 
tliat  a  conviction  or  order  is  conclusive  of  the  matter  .slated  in  it  for  tiie  pur- 
pose of  showing  a  jurisdiction.  [See  the  judgment  of  Mr.  Justice  I'attesoa 
III  re  Clarke,  2  Q.  B.  G34;  see  also  Colonial  Baiik  of  Australasia  v.  Willan,  L. 
R.  5  P.  C.  417;  43  L.  J.  P.  C.  39. 

Possibly  the  distinction  may  be  between  cases  in  which  the  conviction  or 
order  is  made  by  persons  who  arc  admitted  to  constitute  a  legal  court,  and 
who  have  stated  facts  which,  on  information  being  laid,  or  a  case  coming 
before  them,  would  be  matter  to  be  proved,  and  adjudicated  upon  h>j  them,  and 
cases  in  winch  the  objection  is,  that  they  are  not  a  court  at  all,  because  not 
in  fact  magistrates,  or  i)ecause  interested,  because  they  sat  out  of  the  limit  of 
their  jurisdiction,  or  for  some  other  reason,  striking  at  their  existence  as  a 
court,  so  that  the  objection  is  not  that  the  ttatement  of  a  court  is  erroneous, 
but  that  the  source  of  the  statement  is  not  a  court  at  all.  See  the  judgment 
of  Bramwell,  B.,  In  re  Baker,  2  H.  &  N.  219.  But  it  may  well  be  doubted 
whether  this  distinction  affords  a  sudicient  test. 

It  should  seem  that  the  Queen's  Bench  Division  will  on  certiorari  entertain 
allidavits  where  the  conviction  is  good  on  the  face  of  it,  —  not  only  to  show 
that  preliminary  matters  recjuired  to  give  the  justice  jurisdiction  to  enter 
upon  an  iM(iulry  into  the  merits  of  the  case,  were  wanting,  see  A',  v.  Bolton, 
1  Q.  B.  OU;  A'.  V.  Badijer,  C  E.  &  B.  13;  A",  v.  Wood,  5  E.  &  B.  49;  A',  v. 
Justices  of  Totness,  2  L.  M.  &  P.  230;  the  judgments  in  B.  v.  St.  Olave's 
District  Board,  8  E.  &  B.  529;  and  In  re  Smith,  3  II.  &  N.  227  — or  that 
circumstances  appeared  in  the  course  of  the  inquiry  which  ousted  his  juris- 
diction, R.  V.  Nunnetey,  E.  B.  &  E.  852 ;  R.  v.  Cridland,  7  E.  &  B.  352 ;  R.  v. 
Backhouse,  30  L.  J.  M.  C.  118;  R.  v.  Stimpson,  4  B.  &  S.  301  — but  also  that 
there  was  no  eciclence  to  prove  some  fact,  the  existence  of  which  was  essen- 
tial to  establish  the  offence  charged. 

It  must  be  remembered  tliat  before  11  &  12  Vict.  c.  4;!,  the  evidence  must 
have  been  set  forth  in  the  conviction,  and  if  there  was  none  to  support  some 
material  pai't  of  the  information,  the  conviction  would  have  been  (juashed, 
R.  V.  Smith,  8  T.  K.  588.  The  alteration  by  the  statute  of  the  forms  of 
conviction,  which  dispenses  with  the  necessity  of  setting  forth  the  evidence, 
plainly  does  not  narrow  the  jurisdiction  of  the  Court  of  Queen's  Bench 
to  quash  writs  void  for  matter  of  substance ;  and  in  order  to  exercise  this 
jurisdiction  in  respect  of  convictions  bad  for  want  of  evidence,  but  drawn 
up  according  to  the  general  form  given  by  the  statute,  it  is  necessary  that  the 
court  should  receive  affidavits.  See  the  judgments  in  Bnilnfs  Case,  3  E.  &  B. 
607,  where  affidavits  were  admitted  for  the  purpose  of  impeaching  a  conviction 
under  the  Masters'  and  Servants'  Act,  4  Geo.  4,  c.  34,  by  showing  that  tliere 
was  no  evidence  before  the  justices  from  Avhich  the  relation  of  master  and 
servant  could  be  inferred. 

"  Affidavits,"  said  Pollock,  C.  B.,  In  re  Baker,  2  H.  &  N.  219,  223,  "  may  be 
used  for  the  purpose  of  showing  that  there  was  no  evidence  at  all.  l)nt 
if  there  is  conflicting  evidence,  it  is  for  the  justice  to  decide  upon  it."  (But 
see  Stanhope  v.  Thorsby,  L.  R.  1  C.  P.  423,  35  L.  J.  M.  C.  182.) 

In  In  re  Thompson,  6  H.  &  N.  193,  30  L.  J.  M.  C.  19  S.  C,  where  the  pris- 
oner had  been  charged  with  unlawfully  assaulting  and  abusing  Susannah  H., 
and  it  was  plain  upon  the  evidence  that  if  any  offence,  a  rape  or  assault  with 
intent  to  ravish  had  been  committed,  yet  the  justices  convicted  the  prisoner 


CREPPS    V.    DURDEX    ET   ALIOS.  _  lOOS 

of  a  common  assault,  it  appears  to  have  been  the  opinion  of  I'ollock,  C.  B., 
and  Wilde,  B.,  that  the  conviction  was  bad,  because  the  justices  could  not 
have  believed  that  only  a  common  assault  had  been  committed.  But  the 
court  was  divided,  and  Williamson  v.  Button,  3  B.  &  S.  821,  may  be  consid- 
ered a  decision  contrary  to  that  opinion. 

As  a  general  rule  the  jurisdiction  of  justices  to  convict  summarily  ceases 
as  soon  as  a  claim  of  title  in  himself,  CornweU  v.  Sanders,  3  B.  &  S.  206 
(though  only  colourable,  provided  the  right  claimed  be  one  known  to  the 
law),  is  bona  fide  made  by  the  party  against  whom  the  proceeding  is  insti- 
tuted, R.  V.  Cridland,  7  E.  &  B.  853;  Hudson  v.  McRae,  4  B.  &  S.  585;  where 
the  claim  was  made  bona,  fide,  but  to  a  right  impossible  in  law,  and  a  convic- 
tion was  upheld,  followed  in  Fotdger  v.  Steadmnn,  L.  R.  8  Q.  B.  65,  (disap- 
proving of  Jones  V.  Taylor,  1  E.  &  E.  20),  and  also  in  Ilargreaves  v.  Diddams, 
L.  R.  10  Q.  B.  582.  See  also  Leatt  v.  Vine,  30  L.  J.  M.  C.  207;  CornweU  v. 
Sanders,  3  B.  &  S.  206,  and  Wattins  v.  Major,  L.  R.  10  C  P.  662,  where  a 
distinction  is  drawn  between  conviction  under  the  statutes  for  the  protection 
of  game  and  the  orcliiu;ry  case  of  a  conviction  for  which  it  is  said  to  be 
necessary  to  prove  a  inens  rea.  The  question  whether  there  be  such  a  bo7i^ 
fide  claim  of  right  is  a  collateral  question  for  the  justices  to  decide,  but  the 
superior  court  on  affidavit  will  review  their  decision.  See  R.  v.  Stimp^on,  i 
B.  &  S.  301,  where  it  was  held  that  there  was  not,  Paley  v.  Birch,.lQ  L.  T.  N. 
S.  410,  where  it  was  held  that  there  teas,  evidence  to  justify  the  infei'ior  court 
in  tinding  that  the  claim  was  not  bonti  fide  set  up.  See  also  Williams  v. 
Adams,  2  B.  &  S.  312;  Legge  v.  Pardoe,  30  L.  J.  M.  C.  108;  Reg.  v.  Sandford, 
30  L.  T.  N.  S.  601 ;  Lovesy  v.  Stallard,  Id.  792. 

This  rule  as  to  the  cesser  of  the  jurisdiction  to  convict  summarily  on  a 
bona  fide  claim  of  right  being  set  up  is  founded  not  on  statute  but  on 
general  principles  of  law.  See  per  Blackburn,  J.,  in  CornweU  v.  Sanders,  ubi 
sup.,  per  Crompton,  J.,  in  P>.eg.  v.  Stimpson,  ubi  stip. 

There  are  other  similar  cases  in  which  restrictions  are  placed  on  the 
justices'  jurisdiction  by  statute. 

In  R.  V.  Nunneley,  E.  B.  &  E.  852,  an  order,  made  by  justices  for  payment 
of  a  church-rate,  under  53  Geo.  3,  c.  127,  which  provides  that  if  the  validity 
of  the  rate  be  disputed,  and  the  party  disputing  give  notice  to  the  justices, 
they  are  to  forbear  giving  judgment  thereon,  was  quashed  on  affidavits 
showing  that  a  reasonable  objection  had  been  made  to  the  validity  of  the  rate, 
notwithstanding  which  the  justices  proceeded  with  the  case,  holding,  ground- 
lessly,  that  the  objection  was  not  made  bona  fide.  Erie,  J.,  said  :  "  Without 
coming  to  the  much  disputed  point  whether  a  fact  Avhich  is  in  doubt  is  one 
which  affects  the  jurisdiction  in  the  first  instance,  or  one  upon  which  magis- 
trates are  to  judge,  I  think  this  case  is  clear  enough.  The  jurisdiction  of  the 
justices  is  to  decide  whether  the  rate  is  made  and  demanded.  But  then  there 
Is  a  collateral  point  on  which  the  jurisdiction  depends,  that  is,  whether  the 
validity  of  the  rate  is  disputed.  If  it  is,  the  justices  are  to  hold  their  hands. 
That  is  collateral  to  the  merits ;  and  a  matter  on  which  the  jurisdiction 
depends.  And  as  laid  down  in  the  judgment  of  Bunbury  v.  Fuller,  9  Exch. 
140,  '  it  is  a  general  rule  that  no  court  of  limited  jurisdiction  can  give  itself 
jurisdiction  by  a  wrong  decision  on  a  point  collateral  to  the  merits  of  the 
case  upon  which  the  limit  to  its  jurisdiction  depends.'  Then  to  take  the 
simplest  case :  Suppose  a  judge  with  jurisdiction  limited  to  a  particular 
hundred,  and  a  matter  is  brought  before  him  as  having  arisen  within  it,  but 
the  party  charged  contends  that  it  arose  in  another  hundred,  this  is  clearly  a 


1004  CRErPS    V.    DURDEN    ET    ALIOS. 

colhiii-ral  matter  indcpentlent  of  the  merits;  on  its  being  presented,  tlie  jiuljie 
must,  not  immediately  forbear  to  proceed,  but  must  inf|uire  into  its  trutli  or 
falsoliood,  and  for  tlie  time  decide  it.  and  either  proceed  or  not  on  tlie  prin- 
cipal subject-matter  according  as  lie  llnds  on  that  point;  but  this  decision 
must  be  open  to  question,  and  if  he  has  improperly  cither  foreborne  or 
proceeded  on  the  main  question  in  consequence  of  an  error,  on  this  the  Court 
of  Queen's  Bench  will  issue  its  mnndamus  or  prohibition  to  correct  his 
mistake."    See  further  Ex  parte  Mannerimj ,  31  L.  J.  M.  C.  l.");5. 

Where  a  statute,  24  &  25  Vict.  c.  97,  s.  52,  enacted  that  nothing  therein 
contained  should  extend  to  any  case  where  the  party  acted  under  a  fair  and 
reasonable  supposition  that  he  had  a  right  to  do  the  act  complained  of  "  and 
the  justices  found  that  the  appellant  did  not  act  under  a  fair  and  reasonable 
supposition  and  convicted  him,  the  court  upheld  the  conviction,  holding  that 
the  above  express  provision  overrode  the  proviso  usually  implied  as  to  sum- 
mary convictions,  that  a  bonO.  fide  claina  of  right  is  sullicient  to  oust  the 
jurisdiction  of  the  justices."  White  v.  Feast,  L.  R.  7  Q.  B.  353.  See  this 
case,  distinguished  in  Denny  v.  Thmiites,  2  Ex.  D.  21,  4G  L.  J.  Ex.  588,  4G  L. 
J.  M.  C.  141. 

By  24  &  25  Vict.  c.  100,  s.  4G,  it  is  provided  that  justices  "  shall  not  hear 
and  determine  any  case  of  assault  in  which  any  question  shall  arise  as  to  the 
title  to  land."  Under  this  section  it  was  held  that  justices  are  prohibited 
where  title  is  claimed  from  going  into  the  question  of  excess  of  violence  and 
convicting  sununarily  upon  that.  Retj.  v.  Pearson,  L.  R.  5  Q.  B.  237,  3'J  L.  J. 
M.  C.  76.] 

Assuming  that  a  defect  of  jurisdiction  may  in  these  cases  be  shown  by 
affidavit,  every  case,  or  almost  c^'cry  case  of  a  defect  of  jurisdiction  in  the 
convicting  magistrate  or  magistrates  would  be  reviewable  hy  nrtiornri ;  for 
though  it  is  now  usual  for  the  statute  creating  the  ottence  to  contain  a  clause 
taking  away  the  certiorari,  yet  such  clauses  do  not,  generally  speaking,  apply 
to  cases  where  there  was  no  jurisdiction  to  convict,  such  cases  not  falling 
within  the  act  of  parliament  at  all,  R.  v.  Justices  of  Somersetshire,  5  B.  &  C. 
816 ;  R.  V.  Justices  of  the  West  Ridin'j  of  Yorkshire,  5  T.  R.  629 ;  R.  v.  Inhabi- 
tants of  Great  Marlow,  2  East,  244 ;  [i?.  v.  Wood,  5  E.  &  B^  49 ;  S.  C.  nom.  R. 
V.  Rose,  24  L.  J.  M.  C.  130;  Colonial  Bank  of  Australasia  v.  Willan,  L.  R.  5  P. 
C.  417,  43  L.  J.  P.  C.  39;  Ex  parte  Bradlaurjh,  3  Q.  15.  I).  509]  ;  nor  do  they 
apply  to  cases  where  the  conviction  has  been  obtained  by  fraud,  as  when  a 
maltster  had  by  collusion,  and  for  the  purpose  of  exonerating  himself  from 
penalties,  under  7  &  8  Geo.  4,  c.  53,  procured  the  conviction  of  his  servant,  R. 
v.  Gillyard,  12  Q.  B.  527;  \_Colonial  Bank  of  Australasia  v.  Willan,  ubi  sup.}. 
But  there  is  a  distinction  between  cases  of  a  tcant  of  jurisdiction  and  an 
irregularity  in  exercising  it :  in  the  former  case  the  certiorari  lies  notwith- 
standing the  private  clause,  in  the  latter  it  is  taken  away.  R.  v.  Bristol  and 
Exeter  Rail.  Co.,  1  P.  &  D.  170,  note,  11  A.  &  E.  202;  R.  v.  Sheffield  and 
Manchester  Rail.  Co.,  11  A.  &  E.  194;  [R.  v.  Justices  of  Waricickshire,  6  E.  & 
B.  837;  Lalor  v.  Bland,  8  Irish  C.  L.  K.  115].  In  the  [first  of  these]  cases, 
indeed,  the  court  went  to  an  extent  which  seemed  likely  very  much  to  confine 
the  applicability  of  the  writ  of  certiorari;  they  threw  out  the  opinion  that  in 
cases  where  the  proceeding  was  merely  irregular,  the  clause  taking  away  the 
certiorari  applied,  and  that  where  it  was  void  there  was  no  occasion  for  it, 
and  that  the  court  would  not  grant  it.  However,  in  the  [second]  case,  they 
appear  disposed  to  i^epudiate  the  application  of  this  dilemma;  at  all  events, 
in  cases  in  which  the  proceeding  sought  to  be  removed  is  not  void  on  the  face 


CREPPS    V.    DUPvDEN    ET    ALIOS.  1005 

of  it,  but  is  impugned  by  affidavit.  And  in  E.  v.  Cheltenham  Paving  Com- 
missioners, 1  Q.  B.  467,  it  was  distinctly  lield  tliat  in  a  case  of  malversation 
such  a  clause  would  not  operate. 

Though  it  has  been  endeavoured  to  show  that  the  Queen's  Bench  has  a 
right  in  case  of  defect  of  jurisdiction  to  entertain  the  objection  founded  upon 
such  defect  on  affidavit,  yet  it  must  be  observed  that  the  court  is  not  bound 
to  do  so  upon  certiorari;  for  [except  where  the  application  is  by  the  party 
grieved,  Beg.  v.  Justices  of  Sttrrey,  L.  R.  5  Q.  B.  46(5,  39  L.  J.  M.  C.  145,]  a 
certiorari,  as  has  already  been  pointed  out,  is  a  writ  not  of  right,  but  in  the 
discretion  of  tlie  court  to  grant  or  to  refuse  (but  see  the  judgment  in  Sumonds 
V.  Dimsdale,  2  Exch.  533).  And  cases  may  occur  in  which,  though  there  may 
have  been  a  defect  of  jurisdiction,  still  the  court  may  conceive  that  the 
interests  of  justice  would  be  rather  imiieded  than  advanced  by  any  summary 
interference  on  their  part. 

In  R.  V.  Justices  of  Cambridgeshire,  4  B.  &  Ad.  122,  Mr.  Justice  Pattesou 
said,  "  With  regaixl  to  the  objections  in  point  of  jurisdiction,  I  protest 
against  its  being  understood  that  we  can  on  every  occasion  look  into  extrinsic 
matter  on  motions  to  bring  up  orders  by  certiorari."  "  We  must  be  cautious," 
said  Mr.  Justice  Coleridge,  "not  to  exceed  our  jurisdiction;  and  when  we 
find  there  is  a  court  of  appeal  below,  to  which  the  matter  brought  before  us 
on  affidavit  might  have  been  carried,  I  think  we  are  confined  to  objections 
appearing  on  the  face  of  the  order." 

I  do  not  understand  these  observations  of  the  learned  judges  as  importing 
that  there  are  cases  of  a  total  defect  of  jurisdiction  which  the  Court  of 
Queen's  Bench  has  no  power  to  entertain  on  affidavit,  but  that  the  leaning  of 
the  court  is  against  doing  so,  except  where  public  justice  would  be  thereby 
furthered.  See  R.  \.  Justices  of  Denbighshire,  1  B.  &  Ad.  616.  See  R.  v. 
South  Holland  Drainage  Committeemen,  1  P.  &  D.  79;  R.  v.  Manchester  and 
Leeds  Rail.  Co.,  1  P.  &  D.  164.  And  that  its  disinclination  to  interfere  is 
strong  and  uniform  in  cases  where  the  legislature  has  provided  another  com- 
petent tribunal  of  appeal  to  which  the  question  might  be  carried.  See  R.  v. 
Justices  of  Middlesex,  9  A.  &  E.  548,  last  point. 

In  Ex,j)arte  Lord  Gifford,  Carrow's  New  Sess.  Cas.  490,  Mr.  Justice  Williams 
refused  a  certiorari  on  the  ground  that  if  the  recognisance  sought  to  be  re- 
moved were  void,  the  applicant  might  treat  it  accordingly.  It  has  not,  how- 
ever, been  usual  to  refuse  the  writ  for  this  reason,  which  since  the  11  &,  12 
Vict.  c.  44,  s.  2,  prohibiting  actions  against  justices,  &c.,  for  anything  done 
under  convictions  or  orders  made  without  jurisdiction  until  they  have  been 
quashed,  would  scarcely  be  given  in  answer  to  an  application  to  bring  up  a 
conviction  or  order  to  have  them  quashed  for  a  defect  of  jurisdiction. 

In  R.  V.  Justices  of  Cambridgeshire,  3  B.  &  A.  187,  Lord  Denmau,  in  his  judg- 
ment, suggested  another  ground  on  which  an  application  upon  affidavit  might 
possibly  be  entertained.  "I  do  not  say,"  said  his  lordship,  "that  even  on 
certiorari  the  court  would  not  set  aside  an  oi'der  if  manifest  fraud  were  shown. 
That  may  be  so.  In  R.  v.  Justices  of  Somersetshire,  5  B.  &  C.  816,  where  a 
certiorari  was  applied  for  to  remove  an  appointment  of  overseers,  on  a  sug- 
gestion of  corrupt  motives  in  the  appointing  magistrates,  the  court  refused  a 
rule,  saying  that  the  parties  complaining  might  appeal  to  the  sessions,  or 
move  for  a  criminal  information.  Notwithstanding  that  refusal,  however,  I 
do  not  say  that  if  corruption  were  clearly  made  out,  the  court  would  not, 
upon  an  application  like  this,  declare  the  order  invalidated  by  the  fraud." 
This  observation  of  his  lordship  is  consistent  with  the  principle  laid  down  by 


lOOG  CREi'P.s  V.  dl'ui»i:n  kt  alios 

De  Gi'fy,  C.  J.,  in  the  Diichpss  of  Kingston's  Case,  post,  i-olnmr  2,  wliiTe  his 
lordship  observed  that  "  fraud  is  an  extrinsic  collateral  act  which  vitiates 
tlje  most  solemn  proceedin<?s  of  courts  of  justice."  Lord  Coke  says,  "  it 
avoids  all  judicial  acts,  ecclesiastical  or  temporal."  [See  Sheddun  v.  Patrick, 
1  Macq.  H.  of  Lords  C.  535;  and  the  nullity  of  the  judtjmcnt  or  decree  ob- 
tained by  it,  tliough  tiie  judj^jment  or  decree  has  not  been  set  aside  or  reversed, 
may  I)e  allei^ed  in  a  collateral  proceeding,  see  tlie  opinion  of  Willes,  J.,  in  li. 
V.  SadJU'i-'s  Co.,  3  LI.  &  El.  42,  10  H.  of  L.  Cas.  404,  32  L.  J.  Q.  B.  347].  Anil 
see  R.  V.  Gillyard,  [12  Q.  B.  527,]  wliere  fraud  being  shown,  a  conviction  ob- 
tained by  means  thereof  was  i)rought  up  by  cirtiornri  and  (luashed,  [and 
Colonial  Dank  of  Australasia  v.   Willan,  L.  R.  5  P.  C.  417,  43  L.  J.  P.  C.  39]. 

Ihnvever,  where  the  justice  or  justices  had  jurisdiction,  the  court  will  not 
graTit  a  certiorari  to  remove  the  conviction  or  order  upon  a  suggestion  nuide 
by  atlldavit  that  they  liave  exercised  the  jurisdiction  wrongly  :  A',  v.  Justices 
of  Cheshire,  1  P.  &  I).  88,  8  A.  &  L.  308;  R.  v.  St.  James's,  Westminster,  2  A. 
&  E.  241 ;  for  that  woulil  be  to  substitute  tlie  court  al)ove  for  the  tribunal  to 
which  the  statute  luis  committed  tlie  imiuiry. 

[So,  in  ettect,  justices  were  often  obliged  to  determine  linally  dillicult  points 
of  law  on  (juestions  of  great  general  importance,  willioul  having  sullicienl 
materials,  or  time,  for  the  purpose,  and  they  could  not  olitain  for  their  guid- 
ance any  assistance  by  waj'  of  opinion,  or  decision,  from  tlie  superior  courts, 
see  R.  V.  Dayman,  7  E.  &  B.  C72;  R.  v.  Paynter,  Ihid.  328.  This  defect  in  the 
law  has  been  remedied  by  the  Justices'  Special  Case  Act,  20  &  21  Vict.  c.  43, 
by  wliich  magistrates  are  enaijled,  and  may  be  compelled,  to  state  cases  for 
the  opinion  of  any  of  tlie  superior  courts,  and  also  by  the  Summary  Jurisdic- 
tion Act,  1879,  sect.  33,  which  gives  a  furtiur  |)ower  of  stating  a  case  for  the 
opinion  of  tlie  High  Court  of  Justice. 

Tlie  2nd  section  of  20  &  21  Vict.  c.  43  provides  tliat  after  tiie  hearing 
(Bradshaw  v.  Vaughton,  30  L.  J.  C.  P.  93)  and  determination  {Davys  v.  Doug- 
las, 4  H.  &  N.  183;  S.  C.  28  L.  J.  M.  C.  193)  l)y  a  justice  or  justices  of  any 
information  or  complaint  tchich  they  havepower  to  determine  summarily  )  To'cn- 
send  V.  Reed,  10  C.  B.  N.  S.  308;  Ex  parte  May,  2  B.  &  S.  42(5,  31  L.  J.  M.  C. 
161;  Luton  Local  Board  of  Health  v.  Davis,  2[)  L.  J.  M.  C.  173;  Diss  Urban 
Sanitary  Authority  \.  Aldrich,  2  Q.  B.  D.  179,  4(;  L.  J.  M.  C.  183;  Snndgate 
Local  Board  v.  Pledge,  14  Q.  B.  D.  730;  either  party  to  tlie  i)roceeding  may, 
if  dissatisfied  with  the  determination  {Davys  \.  Douglas),as  erroneous  in  point 
of  laic  {Xeicman,  app.,  Baker,  resp.,  8  C  B.  N.  S.  200;  Taylor  v.  Smart,  31  L. 
J.  M.  C.  252;  llargreaves  v.  Taylor,  33  L.  J.  M.  C.  Ill ;  JlohJ.s  v.  Dance,  L.  R. 
9  C.  P.  30),  apply  in  writing  within  three  days  {Mayer  v.  Harding,  L.  R.  2  Q. 

B.  410),  to  the  justice  or  justices,  to  state  and  sign  a  case,  setting  forth  the 
facts,  and  the  grounds  of  the  determination,  for  the  opinion  of  any  one  of 
the  superior  courts  of  law. 

Within  three  days  after  receiving  the  case  llie  api)ellant  is  to  transmit  it 
{Banks  v.  Goodwin,  3  B.  &  S.  548,  32  L.  J.  Q.  B.  87;  Pennell  v.  Uxbridge,  31 
L.  J.  M.  C.  92 ;  Local  Board,  dr.,  of  Gloucester  v.  Gardner,  32  L.  J.  M.  C.  G6)  to 
the  court  named  in  his  application,  first  giving  {Ashdoion  v.  Curtis,  31  L.  J. 
M.  C.  216)  written  notice  of  tlie  appeal  {Crick  v.  Ockmand,  Q.  B.  17  Jan. 
1863) ,  with  a  copy  of  the  case  so  written  and  signed,  to  the  other  party. 

(As  to  these  conditions  to  the  right  of  appeal,  see  Peacock  v.  The  Queen,  4 

C.  B.  N.  S.  264;  Morgan  v.  Edwards,  5  II.  &  N.  415;  Syred  v.  Carruthers,  E. 
B.  &  E.  469;  Woodhouse  v.  Wood,  29  L.  J.  M.  C.  149;  G.  N.  R.  v.  Inett,  2  Q. 
B.  D.  284,  46  L.  J.  M.  C.  237,  46  L.  J.  Q.  B.  749.  ) 


CREPl'S    V.    DUllDEN    ET    ALIOS.  1007 

By  sect.  3  the  appellant  on  applying  for  the  case  {Chapman  v.  Robinson,  E. 
&  E.  25 ;  Stanhope  v.  Thorsby,  L.  R.  1  C.  P.  423,  35  L.  J.  M.  C.  182)  must  enter 
into  a  recognizance  {Stanhope  Thorsby,  ubi.  sup.)  and  pay  cei'taiu  fees,  and 
then  upon  a  condition  being  added  to  the  recognizance  for  his  appearance 
before  the  justices  to  abide  by  their  judgment  if  unreversed,  he  will,  if  in 
custody,  be  entitled  to  his  liberty. 

By  sect.  4  the  justices,  if  of  opinion  that  the  application  is  merely  frivolous 
(and  provided  it  Avas  not  directed  by  the  attorney-general) ,  may  refuse  to 
state  the  case;  but  then  by  sect.  5,  the  Court  of  Queen's  Bench  (now  repre- 
sented by  the  Queen's  Bench  Division  of  the  High  Court  of  Justice,  under 
sect.  34  of  the  Judicature  Act,  1873),  may  grant  a  rule  calling  upon  them  and 
the  respondent  to  show  cause  why  they  should  not  do  so,  and  may  make  the 
rule  absolute,  or  discharge  it  with  or  without  costs. 

By  sect.  6  the  court  to  which  the  case  is  transmitted  may  hear  and  deter- 
mine the  questions  of  law  arising  upon  it  {Gocernors,  &c.,  of  St.  James's,  West- 
minster v.  Battersea,  Overseers  of,  C.  P.  6  Jur.  IST.  S.  100;  Jones  v.  Taylor,  1 
E.  &  E.  20,  even  on  points  not  taken  before  the  justices.  Knight  v.  Ilalliwell, 
L.  11.  9  Q.  B.  412),  and  I'everse,  affirm,  or  amend  the  determination,  or  remit 
the  matter  to  the  justices  with  the  opinion  of  the  court,  or  may  make  such 
other  order  in  relation  to  the  matter  (Shackell  West,  29  L.  J.  M.  C.  45),  and 
such  orders  as  to  costs  (Biidcnberg  v.  Roberts,  L.  R.  2  C.  P.  292;  Garnett  v. 
Backhouse,  L.  R.  3  Q.  B.  G99),  as  to  the  court  shall  seem  fit;  and  all  such 
orders  are  final  and  conclusive  on  all  parties.  The  same  section  provides  that 
the  justices  are  not  to  be  liable  for  any  costs  of  the  appeal.  (As  to  the  costs 
of  the  appeal,  see  Venables  \.  Hardman,  E.  B.  &  E.  79.)  Costs  are  granted 
even  though  the  case  be  struck  out  on  account  of  the  failure  of  the  appellant 
to  transmit  the  case  within  three  days,  G.  N.  B.  v.  Inett,  2  Q.  B.  D.  284,  4G  L. 
J.  M.  C.  287,  disapproving  Peacock  v.  The  Queen,  4  C.  B.  N.  S.  264 ;  and  see 
Crowther  v.  Boult,  13  Q.  B.  D.  680. 

By  sect.  7  the  case  may  be  remitted  to  the  justices  for  amendment,  Christie 
V.  Guardians  of  St.  Luke's,  8  E.  &  B.  992;  Yoi'kshire  Tire  and  Axle  Co.  v. 
Rotherham,  &c.,  4  C.  B.  N.  S.  362;  Rider  v.  Wood,  29  L.  J.  M.  C.  1. 

By  sect.  8  the  powers  given  to  the  superior  court  may  be  exercised  by  a 
judge  of  tlie  court  sitting  in  chambers  in  term  time  or  in  vacation.  Sect.  9 
authorises  the  justices  to  enforce  any  conviction  or  order  affirmed,  amended, 
or  made  by  the  superior  court,  and  exempts  them  from  liability  by  reason  of 
any  defect  in  such  conviction  or  order;  see  Waller  v.  G.  W.  Rail.  Co.,  29  L. 
J.  M.  C.  107.  By  sect.  10  no  certiorari  or  other  writ  is  required  for  the  re- 
moval of  the  conviction,  order  or  determination,  in  reference  to  which  the 
case  is  stated.  Sect.  11  enables  the  superior  courts  to  make  rules  for  the 
practice  and  proceedings  under  the  act.  Sect.  13  relates  to  recognizances 
taken  under  the  act,  and  sect.  14  deprives  parties  who  appeal  under  the  act, 
of  their  appeal  to  quarter  sessions. 

The  Court  of  Common  Pleas  have  held  that  the  act  does  not  apply  to  a 
decision  of  justices  called  in  to  decide  a  dispute  under  the  Friendly  Societies 
Acts,  it  having  been  enacted  by  18  &  19  Vict.  c.  63,  s.  40,  that  such  a  decision 
shall  be  binding  and  conclusive  on  all  parties.  See  Callaghan  v.  Dolioin,  L.  R. 
4  C.  P.  288,  38  L.  J.  M.  C.  110,  overruling  Beg.  v.  Lambarde,  L.  R.  1  Q.  B.  388. 

The  fact  of  another  appeal  being  given  by  statute  does  not  exclude  this 
act,  Poioer  v.   Wigmore,  L.  R.  7  C.  P.  386. 

By  the  Summary  Jurisdiction  Act,  1879,  42  &  43  Vict.  c.  49,  s.  33,  it  is 
further  provided  that  "  (1)  Any  person  aggrieved  who  desires  to  question  a 


1008  citKiM's  \.   i>ii:i»KN    i;r  alios. 

conviction,  order,  liPti^nninftlion,  or  other  proceed imj  {SniKfi/iite  Loral  Board  v. 
Pledije,  14  Q.  B.  I).  730)  of  a  fourt  of  snmiimry  jurisdiction  on  tlie  ^rouiul 
that  it  is  erroneous  in  point  of  law,  or  is  in  exress  of  tlie  Jurisdietlon,  may 
apply  to  the  court  {Ex parte  Curtiif,  '.i  Q,.  li.  I).  13)  to  state  a  special  cusc  set- 
tin}^  fortii  tlie  facts  of  tlie  case  and  tlie  {grounds  on  wliicli  tlie  proceeding  is 
questioned,  and  if  tlie  court  decline  to  state  the  case,  may  apply  to  the  llijrh 
Court  ()f  Justice  for  an  order  re(|uiniij?  the  case  to  be  stated.  (2)  The  appli- 
cation shall  he  made  and  the  case  stated  within  such  time  antl  in  sucli  numner 
as  may  l)e  from  tiuie  to  time  directed  by  rules  under  this  act,  and  the  case 
shall  iu'  heard  and  determined  in  manner  prescribed  by  rules  of  court  made  in 
pursuance  of  '  The  Supreme  Court  of  .Judicature  Act,  lH7"i,'  and  the  acts 
amendini;  the  same;  and  subject  as  aforesaid,  the  act  of"  20  &  21  Vict.  c.  43, 
above  stated,  "shall,  so  far  as  it  is  applical)le,  apply  to  any  special  case 
stated  under  this  section,  as  if  it  were  stated  under  that  act. 

"  Provided  that  nothins;  in  this  section  shall  prejudice  the  staleiuenl  of  any 
special  case  under  that  act." 

By  Uulc  18  of  tlie  Summary  .lurisdiction  Uules,  IHSC,  made  in  pursuauce  of 
the  above  section,  "  An  a|)plication  to  a  court  of  summary  jurisdiction  "  under 
that  section  "  to  state  a  special  case  sliall  be  made  in  writinj;,  and  a  coi)y  left 
witli  the  clerk  of  the  Court,  and  may  be  made  at  any  time  within  seven  dear 
days  from  the  date  of  the  proceedini;  to  be  questioned,  and  the  case  shall  be 
stated  within  three  calendar  months  after  the  date  of  the  application,  and 
after  the  recoi^nizance  shall  have  been  entereil  into."  (See  the  rules  set  out 
in  exttnso  iu  the  Weekly  Notes,  October  Uth,  1«8G.)] 


JURISDICTION  AND  ATTACKING  .ILDO.MHNTS  COLLATKK.VLLV. 

While  the  jiule^ments  of  any  cmtrt,  whether  of  superior  or  of 
inferior  jurisdiction,  nuiy,  under  <'tMt;iin  circumstances,  be  at- 
tacked collaterally,  for  want  of  jurisdiction  on  the  part  of  the 
court  rendering  the  judgment,  nevertheless  the  judgments  of 
superior  courts  stand  upon  a  very  different  footing  from  the 
judgments  of  inferior  courts  in  this  regard. 

Although  the  judgments  of  courts,  whether  of  superior  or  in- 
ferior jurisdiction,  import,  for  most  purposes,  absolute  verity, 
and  are  conclusive  between  the  parties  as  to  the  points  ad- 
.judicated,  this  is  true  sitbject  to  the  condition  that  the  court 
assuming  to  act  had  jurisdiction  not  only  of  the  subject-matter 
of  the  controversy,  but  also  of  the  persons  of  the  parties. 


The  Distinction  between  Courts  of  Superior  and  those  of  Inferior 

Jurisdiction. 

It  is  not  easy  to  state  any  general  rule  by  which  courts  of 
inferior  may  be  distinguished  from  those  of  superior  jurisdic- 


CREPPS   V.    DURDEN   ET   ALIOS.  1009 

tion.  The  distinction  is  often  stated  to  be  tliat  between  courts 
of  record  and  tliose  not  of  record ;  and  the  rules  conform  sul> 
stantially  to  this  view.  But  the  terms  "inferior"  and  "supe- 
rior "  are  more  commonly  used  in  the  cases. 

The  terms  "  limited  "  and  "  general "  are  often  used  to  dis- 
tinguish the  kind  of  jurisdiction  of  certain  courts.  Indeed,  the 
terms  are  not  infrequently  used  interchangeably  with  the  terms 
"inferior"  and  "superior."  In  this  use  the  terms  are  by  no 
means  accurately  applied;  e.g.,  iis  we  shall  see,  the  United 
States  Circuit  and  District  Courts  are  of  limited  thousrh  of 
superior  jurisdiction.  The  terms  are  also  productive  of  confu- 
sion in  this,  that  even  superior  courts  of  a  general  jurisdiction 
are,  when  exercising  their  powers  for  some  special  and  limited 
statutory  purpose,  in  the  same,  or  nearly  the  same,  position  as 
to  supporting  presumptions,  &c.,  as  inferior  courts.  It  will  not 
be  attemj)ted  to  formulate  in  this  note  a  general  rule,  or  to  go 
into  any  full  discussion  regarding  the  distinctions.  The  dis- 
tinction which  is  perhaps  the  most  obvious  of  all  is  that  be- 
tween courts  which  are  of  record  and  those  which  are  not.  Cf. 
Turner  v.  Malone,  24  S.  C.  398 ;  Epping  v.  Robinson,  21  Fla.  36, 
and  many  cases.  This,  however,  fails  to  meet  all  the  cases.  In 
Texas  the  distinction  has  been  drawn  as  between  courts  the 
powers  of  which  are  established  by  the  Constitution  of  the 
State,  and  those  which  owe  their  existence  to  special  acts  ; 
Williams  v.  Ball,  52  Tex.  603 ;  Holmes  v.  Buckner,  67  Tex. 
107 ;  these  courts  are  also  courts  of  record. 

The  following  rule  of  distinction  is  stated  in  Freeman  on 
Judgments  (3d  ed.),  section  122  :  "  The  next  matter  to  be 
ascertained  is  whether  the  judgment  was  rendered  by  a  court 
of  general  or  of  special  jurisdiction.  There  is  no  well-defined 
test  by  which  to  determine  in  all  cases  whether  a  court  belongs 
to  the  one  class  or  to  the  other.  But  all  courts  invested  with 
a  general  common-law  jurisdiction,  in  law  or  in  equity,  are, 
when  exercising  such  jurisdiction,  properly  included  in  the  first 
class ;  while  all  such  courts  as  are  erected  upon  such  principles 
that  their  judgments  must  be  disregarded  until  proceedings 
conferring  jurisdiction  are  shown,  belong  to  the  second  class. 
.  .  .  The  use  of  the  words  'superior'  and  'inferior,'  or  'limited' 
and  '  general,'  however  apt  they  may  have  once  been,  are  less 
so  at  this  time  and  place  ;  and  their  duties,  in  view  of  our 
system  and  mode  of  procedure,  would  be  better  performed  by 


1010  CKEl'l'S    V.    DUKDEN    ET    ALIOS. 

the  terms  'courts  of  record,'  and  'courts  and  tribunals  not  of 
record.'  " 

We  have  retained  the  terms  "superior"  and  "inferior," 
simply  because  the  terms  seem  to  be  of  most  common  use 
in  the  books  and  cases.  Avoiding  discussion  of  the  theo- 
retical distinctions,  the  following  decisions  have  been 
reached :  — 

Beside  state  supreme  court^s  and  other  court^i  of  a  similar 
character,  when  they  act  under  general  powers,  the  folhnving 
have  been  declared  to  be  superior  courts  :  — 

United  States  circuit  and  district  courts.  —  It  is  now  well 
settled  that  those  courts,  though  of  limited,  are  also  of  superior 
jurisdiction.  See  language  in  Turner  v.  Bank  of  North  Amer- 
ica, 4  Dall.  8;  Mason  v.  Tuttle,  75  Va.  105  (Limited  Act). 
See  Pearce  v.  Winter  Iron  Works,  32  Ala.  68;  Chemung  Canal 
Bank  v.  Judson,  4  Seld.  254 ;  Kempes  Lessee  v.  Kennedy,  5  Or. 
185;  Baldwin  v.  Hale,  17  Johns.  272;  Wood  r.  Mann,  1  Sumn. 
680;  Griswold  v.  Sedgwick,  1  Wend.  131;  Skillerns  Ex'rs  v. 
Mays  Ex'rs,  G  Cr.  2(;7  ;  iV  parte  Watkins,  3  Pet.  193 ;  Ken- 
nedy V.  Georgia  Bank,  10  How.  U.  S.  58(3 ;  McCormick  v.  SuUi- 
vant,  10  Wheat.  192;  Wright  v.  Marsh,  2  Greene  (la.)  94; 
Turrell  v.  Warren,  25  Minn.  9 ;  Williamson's  Case,  26  Pa.  St.  9. 
But  see  Boisse  v.  Dickson,  31  La.  Ann.  741 ;  Morse  v.  Presbey, 
25  N.  H.  299.  These  latter  cases  mainly  depend  upon  the  fact 
that  the  court  rendering  the  judgment  was  acting  under  special 
and  limited  acts,  as,  for  instance,  the  bankrupt  laws. 

County  courts.  —  As  a  rule,  it  is  held  that  the  county  courts 
in  the  various  states,  where  they  are  courts  of  record,  are 
courts  of  general  jurisdiction  ;  Propst  v.  Meadows,  13  111.  157. 
The  English  county  courts  established,  and  their  powers  de- 
fined by  special  act  of  Parliament,  are  within  the  same  rule ; 
Levy  V.  Moylan,  10  C.  B.  189 ;  Houlden  v.  Smith,  19  L.  J. 
N.  S.  Q.  B.  170.  County  courts  in  Florida  are  courts  of  record ; 
Epping  V.  Robinson,  21  Fla.  36.  County  courts  of  common 
pleas  in  Tennessee  are  courts  of  general  jurisdiction  and  are 
courts  of  record ;  Pope  v.  Harrison,  16  Lea  (Tenn.)  82.  See, 
also,  Bannard  v.  Banuard,  119  111.  92  ;  Lessee  of  Grignon  v. 
Astor,  2  How.  319. 

The  following  courts  have  been  generally  held  to  be,  in  the 
particular  states  where  they  are  held,  of  inferior  jurisdic- 
tion :  — 


CREPPS    V.    DUEDEN    ET    ALIOS.  1011 

Courts  of  justices  of  the  peace.  — ■  See  for  dicta  and  decisions  : 
Mudge  V.  Yaples,  58  Mich.  307  ;  White  v.  Morse,  139  Mass. 
162 ;  People  v.  Jarrett,  7  111.  App.  566 ;  Knell  v.  Briscoe,  49 
Md.  414;  Londegan  v.  Hammer,  30  la.  508  at  p.  512;  Morton 
V.  Crane,  39  Mich.  526.  See  Tyler  v.  Alford,  38  Me.  530; 
Tompkins  v.  Sands,  8  Wend.  462 ;  Armstrong  v.  Campbell,  1 
Brev.  Pt.  II.  p.  259  ;  McCkire  v.  Hill,  36  Ark.  268 ;  Wise  v. 
Withers,  3  Cr.  331 ;  Clark  v.  Holmes,  1  Doug.  (]\Iich.)  390 ; 
Piper  V.  Pearson,  2  Gray  120;  Clark  v.  May,  2  Gray  410; 
Sullivan  v.  Jones,  2  Gray  570 ;  Bigelow  v.  Stearns,  19  Johns. 
39 ;  Estopinal  v.  Peyroux,  37  La.  Ann.  477 ;  Wright  v.  Rouss, 
18  Neb.  234 ;  Little  v.  Moore,  1  South.  74 ;  Cunningham  v. 
Pacific  Ry.,  61  Mo.  33 ;  Evans  v.  Pierce,  2  Scamm.  468 ;  Par- 
don V.  Divine,  23  111.  572 ;  Anderson  v.  Miller,  4  Blackf.  417  ; 
Wood  V.  Wood,  78  Ky.  624 ;  Clark  v.  Holmes,  1  Doug.  390 ; 
Camp  V.  Wood,  10  Watts  118 ;  Bersh  v.  Schneider,  27  Mo.  101 ; 
Thomas  v.  Robinson,  3  Wend.  267.  It  was  held  in  Hofheimer 
V.  Losen,  24  Mo.  App.  652,  that  where  a  judgment  of  a  justice 
of  the  peace  of  Illinois  was  offered  in  a  Missouri  court,  the  law 
giving  the  justice  jurisdiction  must  be  proved. 

The  contrary  view  has  been  taken,  however,  in  some  states, 
as  a  rule,  owing  to  the  fact  that  the  courts  were  of  record. 
In  some  of  the  cases  the  courts  are  not  of  record,  but  their 
judgments  are  viewed  with  the  same  supporting  presump- 
tions;  Billings  V.  Russell,  23  Pa.  St.  189;  Clark  v.  M'Com- 
man,  7  W.  &  S.  469 ;  Fox  v.  Hoyt,  12  Conn.  p.  497  ;  Wright 
V.  Hazen,  24  Vt.  143 ;  Turner  v.  Ireland,  11  Humph.  447 ; 
Stevens  v.  Mangum,  27  Miss.  481 ;  Williams  v.  Ball,  52  Tex. 
603;  Holmes  v.  Buckner,  67  Tex.  107;  Haylett  v.  Ford,  10 
Watts  101. 

Probate  courts,  surrogates'  courts,  and  orphans'  courts.  —  These 
courts  are  commonly  regarded  as  of  inferior,  or,  at  least,  limited 
jurisdiction.  Of.  Forbes  v.  Battle,  13  S.  &  M.  133;  Smith  v. 
Rice,  11  Mass.  506  ;  Rea  v.  M'Eachron,  13  Wend.  466 ;  Atkins 
V.  Kinnan,  20  Wend.  241 ;  McKee  v.  McKee,  14  Pa.  St.  231  ; 
M'Pherson  v.  Cunliff,  11  S.  &  R.  422 ;  Brodess  v.  Thompson,  2 
Harr.  &  Gill  120 ;  People  v.  Corlies,  1  Sandf.  288  ;  Jenks  v. 
Howland,  3  Gray  536 ;  Flinn  v.  Chase,  4  Den.  85 ;  Culver's 
Appeal,  48  Conn.  165.  But  see,  semhle  contra  Inco  v.  Com- 
mercial Bank,  70  Cal.  339  ;  Key  v.  Vaughan,  15  Ala.  497.  Con- 
sult Canfield  v.  Sullivan,  85  N.  Y.  153.      But  see  Hess  v.  Cole, 


1U12  ci:ki'1*.s  v.  i>ui:ui:n   kt  alios. 

3  Zab.  (Ltuv)  110;  Miittt!r  of  Flalbush  AsumiL-,  1  Barb.  286; 
Anderson  v.  Miller,  7  lUack.  417;  (Corliss  v.  Corliss,  8  Verm. 
373  at  p.  389;  Enos  v.  Sniitli,  7  S.  &  M.  85;  Grilliths  Atha.  v. 
Yertner,  5  How.  73<).  In  IV-nnsylvania  and  Alabama,  orplians' 
courts  are  courts  of  record  and  would  seem  to  stand  nearly  on 
the  same  basis  as  to  presumptions,  &c.,  as  other  courts  of 
superior  jurisdiction.  Freeman  on  JudMinents  (3  ed.)  section 
122.  The  probate  courts  in  Arkansas,  Minnesota,  Missouri, 
South  Carolina,  and  California  stand  upon  a  similar  basis,  as 
being  courts  of  record;  Dayton  v.  Mintzer,  22  Minn.  393; 
Johnson  v.  Beazely,  05  Mo.  250  ;  McCauley  v.  Harvey,  49  Cal. 
497.  See  State  of  Ohio  v.  Hinchman,  27  Pa.  St.  479  ;  Turner  v. 
Malone,  24  S.  Car.  398.     . 

Courts  martial.  — See  Dynes  i'.  Hoover,  20  How.  (U.  S.)  65. 

Mayors'  courts  in  England.  —  M'Dauiel  V.  Hu^heS,  3  East  367; 
Westoby  v. Day,  2  E.  &  B.  603  ;  Fisher  v.  Lane,  3  Wils.  297.  The 
ireneral  lesult  of  the  cases  seems  to  be  that  tlie  main  distinction 
between  courts  of  ditl'erent  grades  of  jurisdiction  depends  upon 
the  question  whether  the  court  under  consideration  has  a 
general  common  law  or  e(iuity  jurisdiction,  or  whether  its  pow- 
ers are  limited  and  de lined  by  a  statute  creating  it. 

It  is  not  of  importance  that  the  general  common  law  or 
equity  jurisdiction  is  limited  to  particular  classes  of  persons 
and  circumstances,  as  is  the  case  with  the  United  States  courts. 
Nor  is  it  of  importance  that  the  jurisdiction  is  limited  by  the 
amount  in  controversy,  as  is  the  case  with  most  of  the  county 
and  similar  courts.  If  the  court  is  one  possessing  general  com- 
mon law  or  equity  powers,  even  thougli  conferred  by  statute, 
the  court  will  be  one  of  general  and  superior  jurisdiction,  and 
its  judgments  will  be  supported  by  the  presunqjtions  attending 
the  judgments  of  superior  courts,  and  will  be  conclusive  in  the 
same  respects.  If,  on  the  other  hand,  the  court  is  one  of 
limited  or  limited  statutory  jurisdiction,  the  court  will  be  re- 
garded as  an  inferior  one,  and  the  effect  of  its  judgments  will 
be  limited,  in  certain  respects.  As  we  have  seen,  these  general 
conclusions  are  subject  to  man}-  modifications  in  the  different 
jui-isdictions.  The  tendency  of  modern  decisions  seems  to  be 
toward  doing  away  with  the  distinctions  pointed  out,  but,  for 
the  present  the  distinctions  seem  to  be  too  well  grounded  in 
the  cases  to  be  successfully  attacked. 


CREPPS   V.    DUKDEN   ET   ALIOS.  1013 


II. 

Attaching  Judgments  of  Courts  of  Superior  Jurisdiction 
collaterally. 

(cC)  Presumptions  as  to  records  of  superior  courts,  where  the 
courts  act  -within  their  ordinary  limits  of  jurisdiction.  —  The  rec- 
ords of  superior  courts  are  always  supported  by  the  presump- 
tion that  whatever  was  done  by  them  in  the  course  of  the 
exercise  of  their  powers,  was  rightly  done.  Consequently 
the  rule  is  now  Avell  settled  that  where  a  judgment  or  decree 
of  a  court  of  superior  jurisdiction  is  brought  up  collaterally  in 
other  proceedings,  it  will  be,  prima  facie,  sustained  by  the  pre- 
sumption of  ofune  rita  acta.  This  is  true  even  where  the  record 
does  not  affirmatively  show  that  the  court  obtained  jurisdiction 
of  the  parties  or  of  the  subject-matter,  where  the  court  acts 
under  general  powers  ;  Ferguson  v.  Crawford,  86  N.  Y.  609 ; 
Pennington  v.  Gibson,  16  How.  65;  Peacock  v.  Bell,  1  Saun- 
ders 73 ;  Turrell  v.  Warren,  25  Minn.  9 ;  Venable  v.  McDonald, 
4  Dana  336 ;  Wright  v.  Watson,  11  Humph.  529 ;  Hall  v.  Law, 
2  W.  &  S.  135 ;  Bridgeport  v.  Blinn,  43  Conn.  274 ;  Board  of 
Commrs.  v.  Markle,  46  Ind.  96  ;  Dwiggins  v.  Cook,  71  Ind.  579; 
Clark  V.  Sawyer,  48  Cal.  133 ;  Folger  v.  Columbian  Ins.  Co.,  99 
Mass.  267  (273)  ;  Lockwood  v.  State,  1  Carter  161 ;  Galpin  v. 
Page,  18  Wall.  350  ;  Yates  v.  Lansing,  5  Johns.  282 ;  Chemung 
Bank  v.  Judson,  4  Seld.  254;  Hart  v.  Seixas,  21  Ward  40; 
Wright  V.  Douglas,  10  Barb.  97  ,  Tallman  v.  Ely,  6  Wis.  244 ; 
Huntington  v.  Charlotte,  15  Vt.  46;  Wright  v.  Marsh,  2 
Greene  94. 

"It  is  undoubtedly  true  that  a  superior  court  of  general 
jurisdiction,  proceeding  within  the  general  scope  of  its  powers, 
is  presumed  to  act  rightly.  All  intendments  of  law  in  such 
cases  are  in  favor  of  its  acts.  It  is  presumed  to  have  jurisdic- 
tion to  give  the  judgments  it  renders  until  the  contrary  ap- 
pears. And  this  j)resumption  embraces  jurisdiction  not  only 
of  the  cause  or  subject-matter  of  the  action  in  which  the  judg- 
ment is  given,  but  of  the  parties  also." 

Field  J.  in  Galpin  v.  Page,  supra,  at  p.  365.  Where,  how- 
ever, the  record  of  a  superior  court  affirmatively,  and  on  its  face 
shows  that  there  was  a  want  of  jurisdiction,  the  judgment  may 
be  attacked  collaterally,  even  in  the  jurisdiction  where  it  was 


1014  CKEIM'S    V.    DIKIMON    KT    ALIOS. 

rendered,  and  this  where  the  party  relying  upon  the  judgment 
pleads  it,  and  the  adverse  party  relies  upon  a  plea  amounting 
to  mil  tlel  record;  Wright  v.  Boynton,  37  N.  H.  9;  Judkins  v. 
Union  Mutual  Ins.  Co.,  37  N.  H.  470 ;  Thurber  v.  Blackburne, 
1  N.  H.  242;  Hall  v.  Williams,  6  Pick.  232  (247);  Smith  v. 
Smith,  17  111.  482.  See  Holt  v.  Alloway,  2  Blac-kf.  (Ind.)  108; 
Welch  V.  Sykes,  3  Gilm.  197 ;  Reed  v.  Wright,  2  Greene 
(la.)  15. 

In  Buchanan  v.  Port,  5  Ind.  204  and  Davis  v.  Lane,  2  Ind. 
548,  it  was  held  that  a  plea  amounting  to  an  attack  upon  the 
record  of  the  former  judgment  was  not  effectual. 

(ft)  Affirmative  finding  of  jurisdictional  facts  in  the  judgment, 
decree  or  findings  of   a  superior  court .  — 

(1)  "Where  the  judgment  questioned  collaterally  is  a  domestic 
one.  —  It  is  now  well  settled  that  where  a  superior  court  of  the 
dt)mestic  jurisdiction  alhrmatively  passes  upon  the  jurisdictional 
facts,  and  this  fact  is  shown  by  its  record,  such  a  finding  cannot 
be  collaterally  questioned. 

This  is  often  spoken  of  as  an  instance  of  tlie  operation  of  a 
conclusive  presumption.  It  is  conceived  that  this  is  not  an 
accurate  statement  of  the  theory  of  law.  It  does  not  belong 
to  the  presumptions  at  all,  but  is  simply  and  purely  a  positive 
rule  of  law.  A  presumption  is  a  rule  of  evidence,  —  an  intend- 
ment of  law  which,  in  certain  circumstances,  excuses  a  party 
from  producing  evidence.  The  rule  here  is  simply  a  branch 
of  the  general  rule  that  where  a  superior  court  passes  upon  any 
fact  within  the  general  scope  of  its  powers,  such  action  is  bind- 
ing upon  parties  to  the  action  and  those  claiming  under  them, 
and  becomes  res  ailjiidicata  from  thenceforward.  Its  action  is 
subject  to  review  only  upon  appeal  or  proceeding  in  error,  or, 
in  certain  instances,  in  equity  actions  to  set  aside  the  judgment ; 
Gi-anger  v.  Clark,  22  Me.  128 ;  Peck  v.  Woodbridge,  3  Day  30 ; 
Sims  V.  Slackum,  3  Cranch  300 ;  Cook  v.  Darling,  18  Pick. 
393 ;  Richards  v.  Skiff,  8  Ohio  St.  586 ;  Grignon's  Lessee  v. 
Astor,  2  How.  319 ;  McCauley  v.  Fulton,  44  Cal.  356 ;  Pritch- 
ard  V.  Madren,  24  Kas.  486 ;  Safferans  v.  Terry,  12  S.  &  ^NI. 
690;  Barnett  v.  Wolf,  70  111.  76;  Searle  v.  Galbraith,  73  111. 
269 ;  Case  of  Sheriff  of  Middlesex,  11  Ad.  &  El.  273 ;  State  v. 
Tipton,  1  Black  166 ;  State  v.  Woodfin,  5  Ired.  199 ;  Anderson 
V.  Wilson,  100  Ind.  402 ;  White  v.  Crow,  17  Fed.  R.  98 ;  Mack 
V.  Ins.  Co.,  4  Hughes  C.  C.  61 ;  Hunter  v.  Stonebruner,  92  111. 


CREPPS    V.    BURDEN   ET    ALIOS.  1015 

75,  Li  re  Fernandes,  H.  &  N.  717;  Burdett  v.  Abbott,  14  East 
1,  semhle  accord.  Cooper  v.  Sunderland,  3  Clarke  114 ;  People 
V.  Kelly,  24  N.  Y.  74 ;  Commonwealth  v.  Newton,  1  Grant  453. 

The  return  by  an  officer  of  proper  service,  when  made  a  part 
of  the  judgment  roll,  will  be  conclusive ;  Brown  v.  Turner,  11 
Ala.  752 ;  Lightsey  v,  Harris,  20  Ala.  409.  In  Callen  v.  Ellison, 
13  Ohio  St.  446,  a  record  of  a  judgment  was  produced  in  a 
collateral  proceeding.  The  record  showed  that  certain  defend- 
ants had  confessed  judgment  by  their  attorney.  It  was  sought 
to  be  shown  that  the  power  of  attorney  on  file  did  not  purport 
to  be  signed  by  some  of  the  defendants.  It  was  held  that,  in 
a  domestic  proceeding  such  evidence  could  not  be  received  to 
impeach  the  record  collaterally.  Cf.  Wetherill  v.  Stillman, 
65  Pa.  St.  105 ;  Tant  v.  Wigfall,  65  La.  412;  Lapham  v.  Briggs, 
27  Vt.  26 ;  Pritchett  v.  Clark,  5  Harr.  63 ;  Latterett  v.  Cook,  1 
Clarke  (Iowa)  1 ;  Westcott  v.  Brown,  13  Ind.  83 ;  Rocco  v. 
Hackett,  3  Bosw.  579.  But  see  Shumway  v.  Stillman,  6  Wend. 
442  (452)  ;  Black  v.  Black,  4  Bradf.  174 ;  Bissell  v.  Wheelock, 
11  Cush.  277.  The  general  rule  was  affirmed  in  Walbridge  v. 
Hall,  3  Vt.  114 ;  Burt  v.  Delano,  4  Cliff.  611 ;  Dunham  v.  Vil- 
fong,  69  Mo.  355 ;  Turrell  v.  Warren,  25  Minn.  9. 

(2)  Where  the  judgment  sought  to  be  questioned  collaterally 
is  a  foreign  one,  or  that  of  a  superior  court  of  another  state.  — 
The  judgments  of  the  courts  of  the  different  states,  when 
brought  forward  in  states  other  than  those  in  which  they  are 
rendered  are  not,  in  strictness,  foreign  judgments  in  the  sense 
that  judgments  rendered  by  the  tribunals  of  other  countries 
are  foreign.  Section  1  of  Article  4  of  the  Constitution  of  the 
United  States,  declares  that  "  Full  faith  and  credit  shall  be 
given  in  each  state  to  the  public  acts,  records,  and  judicial 
proceedings  of  every  other  state,"  &c.  Nevertheless,  the  courts 
in  many  states  have  held  that  this  did  not  prevent  the 
courts  of  other  states,  when  a  judgment  even  of  a  superior 
court  of  a  sister  state,  was  set  up  as  a  basis  of  rights  or 
claims,  from  inquiring,  in  certain  cases,  into  the  jurisdiction  of 
the  court  which  rendered  the  original  judgment. 

It  is  beyond  the  scope  of  this  note  to  go  into  the  general 
subject  of  methods  of  obtaining  jurisdiction,  but  perhaps  a 
restricted  treatment  will  be  pertinent.  The  plainest  form  in 
which  the  question  arises,  is,  where  there  is  apparent  on  the 
record  an  attempt  on  the  part  of  the  tribunals  of  one  state, 


1016  cuKi'i's  V.  ijuudi:n   i.r  alios. 

to  exercise  juiisdii-tioii  outside  of  the  borders  of  such  state  —  to 
obtain  jurisdiction,  say,  of  a  non-resident  person  without  at- 
tachment or  personal  notice,  and  without  jurisdiction  in  rem  of 
the  sufficiency  of  the  service  the  legishiture  of  a  state  is  not 
the  sole  judge.  "''  The  autliority  of  every  tribunal  is  necessa- 
rily restricted  by  the  territorial  limits  of  the  state  in  which  it 
is  established.  Any  attempt  to  exercise  authority  beyond 
those  limits  would  l)e  deemed  in  every  other  form,  as  has  been 
said  by  this  court,  an  illegitimate  assumption  of  power,  and  be 
resisted  as  mere  abuse." 

In  personal  actions  jurisdiction,  to  be  of  extra-territorial 
validity,  must  be  by  voluntary  appearance,  by  personal  service 
within  the  state,  or,  in  a  limited  degree,  by  attachment ;  Pen- 
noyer  v.  Neff,  95  U.  S.  714;  ITArcy  v.  Ketclium,  11  How.  165; 
St.  Clair  v.  Cox,  106  U.  S.  350;  BoswcU's  Lessee  v.  Otis,  9 
How.  336  J  Eliot  v.  McCormick,  144  Mass.  10,  and  many  cases. 
In  like  manner,  the  jurisdiction  obtained  by  attachment  is  valid 
in  a  personal  action,  only  to  the  extent  of  the  property  subject 
to  the  control  of  the  sovereignty  wherein  the  attadicd  goods 
are  found.  It  will  not  furnish  a  basis  for  an  action  on  the  judg- 
ment in  aiu)tlu'r  state;  Kil])urn  v.  Woodworth,  5  Johns.  37; 
Robinson  r.  Ward,  8  .Johns.  86;  Downer  v.  Shaw,  22  N.  H.  277; 
Phelps  V.  Holker,  1  Dallas  261;  Kibbe  v.  Kibbe-Kirby,  11!»; 
Bissell  V.  Briggs,  9  Mass.  462. 

Jurisdiction  of  a  foreign  corporation  cannot  be  obtained  by 
service  upon  one  of  its  officers,  in  a  state  where  it  has  no  place 
of  business.  A  judgment  so  obtained  is  open  to  collateral 
question  in  another  state ;  Moulin  v.  Insurance  Co.,  4  Zab.  222. 
See  M'Quen  v.  Middletown  Man.  Co.,  16  Johns.  5,  dictum; 
Bushel  V.  Commonwealth  Ins.  Co.,  15  S.  &  R.  173  (176)  ;  Rid- 
dlebrooks  v.  Springfield  Fire  Ins.  Co.,  14  Conn.  301  ;  Libby  v. 
Hodgdon,  9  N.  H.  394  (396)  ;  Peckham  v.  North  Parish,  16 
Pick.  274  (286). 

It  has  been  held  that,  upon  a  suit  upon  the  judgment  of  one 
state  in  the  courts  of  another,  the  defendant  may  deny  the 
authority  of  the  attorney  who  appeared  for  him.  (See  for 
cases)  Beltzell  v.  Nosier,  1  Clarke  588.  In  Gleason  v.  Dodd,  4 
Mete.  333,  (decision  per  Shaw,  C.  J.)  in  an  action  in  Massa- 
chusetts upon  a  judgment  of  a  superior  court  of  Maine,  it  was 
held  that,  although  the  record  recited  an  appearance  by  the 
iudgment  debtor  in  the  Maine  suit,  this  might  be  contradicted. 


CREPPS    Y.    DUEDEN   ET   ALIOS.  1017 

The  underlying  principle  of  this  decision  seems  to  be  that 
while  full  faith  and  credit  is  to  be  given  in  one  state  to  the 
judicial  acts  of  another,  this  will  not  preclude  the  courts  of  the 
state  where  the  record  is  produced  from  inquiring  in  every 
case,  whether  the  sovereignty  which  assumed  jurisdiction  had 
in  truth  the  jurisdiction  which  it  assumed.  See  Carlton  v. 
Bickford,  13  Gray  591 ;  Norwood  v.  Cobb,  15  Tex.  500  ;  Fos- 
ter V.  Glazener,  127  Ala.  391 ;  Graham  v.  Spencer,  14  Fed.  R. 
603 ;  Wood  v.  Wood,  78  N.  Y.  624 ;  Cross  v.  Cross,  108  N.  Y. 
628.  But  see  Bimeler  v.  Dawson,  4  Scarm.  541 ;  Pringle  v. 
Woolworth,  90  N.  Y.  502.  The  case  of  Borden  v.  Fitch,  15 
John's  B.  121  sustains  the  same  principle,  viz.,  that  a  decision 
of  a  jurisdictional  fact  decided  in  favor  of  the  jurisdiction, 
in  the  tribunal  —  here  the  legislature — of  one  state,  is  not  con- 
clusive when  the  judgment  is  questioned  in  another  state. 
United  States  courts  of  the  same  district,  as  that  of  the 
state  in  which  the  judgment  of  the  former  is  relied  on,  are, 
perhaps,  not  foreign  to  the  tribunal  of  the  state  within  this 
rule.  See  Turrellv.  Warren,  25  Minn.  9;  Chemung  Canal 
Bank  v.  Judson,  4  Selcl.  254.  But  see .  Boisse  v.  Dickson, 
31  La.  Ann.  741. 

Where  a  judgment  obtained  in  one  country  is  sought  to  be 
made  the  basis  of  rights  in  another  and  foreign  one,  the  juris- 
diction may  always  be  made  the  subject  of  inquiry,  whether 
the  defect  appears  upon  the  face  of  the  record  or  not.  Bu- 
chanan V.  Rucker,  9  East  192  ;  Reynolds  v.  Henton,  3  C.  B.  186; 
Cowan  V.  Braidwood,  1  M.  &  Gr.  882 ;  Ferguson  v.  Mahon,  11 
Ad.  &  E.  179 ;  Douglas  v.  Forrest,  4  Bing.  686 ;  Sheehey  v. 
Professional  Life  Assurance  Co.,  3  C.  B.  N.  S.  597 ;  Bank  of 
Australia  v.  Nias,  16  Q.  B.  717 ;  Meens  v.  Thellusson,  8 
Exch.  638. 

The.  presumption  of  regularity  in  the  proceedings  of  supe- 
rior courts  will  always  furnish  jjrimd  facie  evidence  of  jurisdic- 
tion, where  the  contrary  does  not  appear — this  in  suits  in  states 
other  than  those  in  which  the  judgment  was  recovered,  as  well 
as  in  the  domestic  tribunal ;  Hatcher  v.  Rocheleau,  18  N.  Y.  86  ; 
Bimeler  v.  Dawson,  4  Scarra.  541.  See  as  to  the  judgment 
of  United  States  courts  ;  Pearce  v.  Winter  Iron  Works,  32  Ala. 
68 ;  Wright  v.  Marsh,  2  Greene  (la.)  94. 

(e)  "Where  the  defect  of  jurisdiction  appears  upon  the  face 
of  the  record.  —  Where  the  record  affirmatively  shows  a  defect 


1U18  CREl'PS    V.    DUUDEX    ET    ALIOS. 

of  jurisdiction,  tlie  judgment,  even  of  a  superior  court,  may 
always,  both  at  home  and  abroad,  he  attacked  coUaterally. 
This  is  true  whether,  as  in  Crepps  v.  Durden,  the  jurisdictional 
defect  is  one  which  arises  from  a  mistake  in  going  beyond  the 
scope  of  the  law  by  the  court,  or  is  due  to  a  failure  to  obtain 
jurisdi(;tion  of  the  person  of  the  defendant;  Lessee  of  Moore  v. 
Starks,  1  Ohio  St.  3G0  ;  HoUingsworth  v.  Barbour,  4  Pet.  40G; 
AVcbster  v.  Reid,  11  IIow.  437  ;  Shrivers  Lessees  r.  Lynn,  2 
How.  V.  S.  43,  dictum;  Clark  v.  Bryan,  1(3  Md.  171 ;  Mcssinger 
V.  Kintner,  4  Birm.  97  ;  Bal)bitt  v.  Doe,  4  Ind.  35"> ;  Lamar  v. 
Comnn-s.,  21  Ala.  772;  Dempster  v.  Purnell,  3  M.  A:  (ii-.  375; 
Coan  V.  Clow,  83  Ind.  417. 

(c?).  Where  superior  courts  act  outside  of  their  ordinary  general 
jurisdiction,  under  special  statutory  powers. —  It  seems  to  be  the 
weight  of  authority  that  when  a  court  of  superior  jurisdiction 
acts  under  a  special  act,  and  for  a  special  and  limited  purpose, 
the  courts,  even  of  the  domestic  jurisdiction,  will  not  call  forth 
the  ordinary  presumptions  in  favor  of  jurisdiction.  Comi)liance 
with  the  statute  nnist  be  shown  of  record,  or  the  judgment, 
when  (picstioiied  coUaterally,  will  be  treated  as  a  nullity.  The 
cases  show  many  modifications  of  this  general  proposition. 
The  principle  itself  is,  pciha})s,  in  fact,  a  survival  of  the  tradi- 
tions of  the  old  courts,  in  which  every  encroachment  of  the 
legislative  branch  of  government  upon  the  domain  of  the  com- 
mon law  was  viewed  with  jealousy.  It  is,  perhaps,  peculiarly 
out  of  place  in  code  states  where,  as  a  rule,  the  powers  and 
jurisdiction  of  all  courts  are  largely  defined  Ijy  statute.  Never- 
theless, the  principle  is  frequently  asserted,  in  spite  of  the 
fact  that  it  is,  in  many  specific  instances,  disregarded  in  prac- 
tice. The  numerous  modifications  of  the  rule  are  beyond  the 
scope  of  this  note.  "  Where  a  statute  prescribes  a  new  pro- 
ceeding, whether  unknown  to  the  common  law  or  contiary 
thereto,  the  statute,  so  far,  at  least,  as  those  parts  essential  to 
the  jurisdiction  are  concerned,  must  not  only  be  proved,  hut 
shou'7i  to  have  been  strictly  jjursued,  or  the  proceedings  will  be  a 
nullity."  Whyte,  J.,  in  Earthman  v.  Jones,  2  Yerg.  484,  (493). 
In  accord,  Foster  v.  Glazener,  27  Ala.  391 ;  Thatcher  v.  Pow- 
ell, 6  Wheat.  119 ;  Cone  v.  Cotton,  2  Blatchf .  82  ;  11  Phil,  on 
Ev.  (Cowen  &  Hill's  Notes)  2d  ed.  p.  906,  note  637 ;  Commrs. 
V.  Thompson,  15  Ala.  134 ;  Bridge  v.  Ford,  4  Mass.  641  ;  Per- 
rine  v.  Farr,  2  Zab.  356 ;  Queen  v.  Bloomsbury,  4  E.  &  Bl.  520 ; 


CREPPS    V.    DUEDEX   ET   ALIOS.  1019 

Webster  v.  Reed,  11  How.  437 ;  City  of  St.  Louis  v.  Gleason,  93 
Mo.  33. 

Where  a  judgment  in  New  York  in  partition  was  questioned 
collaterally  in  a  New  York  court,  the  statute  providing  a 
specific  method  by  which  unknown  parties  could  be  served,  and 
the  record  did  not  affirmatively  show  full  compliance,  the  court 
held  that  no  presumptions  could  be  called  in  to  support  the  rec- 
ord; Denning  v.  Corwin,  11  Wend.  647.  As  to  the  general 
principle,  see  M'Kim  v.  Mason,  3  Md.  Ch.  186;  Matter  of  Un- 
derwood, 3  Cow.  59 ;  Messinger  v.  Kintner,  4  Birm.  97  ;  Smith  v. 
Rice,  11  Mass.  507 ;  Proctor  v.  Newhall,  17  Mass.  81 ;  Thatcher 
V.  Powell,  6  Wheat.  119 ;  Jackson  v.  Esty,  7  Wend.  148 ;  Rea 
V.  M'Eachron,  3  Wend.  465 ;  Atkins  v.  Kinnan,  20  Wend.  241 ; 
Boswell's  Lessee  v.  Otis,  9  How.  336.  Semhle^  accord.  Mason 
V.  Tuttle,  75  Va.  105.  Li  Bloom  v.  Burdick,  1  Hill,  130,  the 
judgment  was  held  void  because  the  court  was  acting  under 
special  statutory  powers  and  the  jurisdictional  facts  affirmatively 
appeared  of  record  not  to  be  present.  See  Foot  v.  Stevens,  17 
Wend.  483  ;  Hart  v.  Seixas,  21  Wend.  40.  Under  confiscation 
acts  and  acts  of  a  like  nature,  the  courts  have  always  insisted 
upon  a  strict  compliance  with  the  act  under  which  action  was 
taken,  as  to  all  jurisdictional  points ;  Chapman  v.  Phoenix 
National  Bank,  85  N.  Y.  437  (Reversing  12  J.  &  S.  340); 
Windsor  V.  McVeigh,  93  U.  S.  274 ;  Day  v.  Micon,  18  Wall. 
156 ;  Conrad  v.  Maples,  96  U.  S.  279.  Where  an  adjudication 
in  bankruptcy  of  the  United  States  District  Court  was  offered 
in  a  suit  in  a  New  York  state  court,  it  was  held,  it  seems,  that 
the  jurisdictional  facts  need  neither  appear  of  record  nor  be 
shown ;  Cone  v.  Purcell,  bQ  N.  Y.  649 ;  Rosenthal  v.  Plumb,  25 
Hun  336. 

in. 

Inferior  Courts. 

Inferior  courts  stand  upon  a  very  different  basis  from  supe- 
rior courts  in  most  jurisdictions  as  to  the  standing  and  con- 
clusiveness of  their  records.  It  may  be  stated  as  a  general 
principle,  subject  to  many  contrary  decisions,  that  the  record 
of  an  inferior  court  must  show  jurisdiction  upon  its  face,  in 
order  to  have  prima  facie  standing  against  collateral  attack  (a). 


1020  CREPPS   V.   DURDEN    ET    ALIOS. 

(rt)  Presumptions  as  to  records  of  inferior  courts  •where  the 
courts  act  within  their  ordinary  limits  of  jurisdiction. —  It  si'i'MlS 
to  be  fuirly  established  as  a  general  rule,  that  the  record  of  a 
court  of  hifcrior  jurisdiction  must,  in  order  to  be  good,  pritnd 
facie^  against  collateral  attack,  show  jurisdiction.  This  is  true, 
even  where  the  attack  is  in  the  domestic  tribunals.  There  is 
much  conflict  of  decision  upon  this  i)oint,  but,  on  examination, 
it  will  commonly  be  found  that  where  the  rule  has  been  inter- 
preted the  other  way,  the  result  is  due  to  the  fact  that  the 
court,  the  decision  of  which  was  questioned,  has  been  regarded 
really  as  a  superior  one,  by  the  higher  courts  of  the  same 
sovereignity. 

The  rule  is  as  has  been  stated  above,  in  the  following  states : 
Missouri:  Cunningham  v.  Pacific  liy.  61  Mo.  33;  Fisher  v. 
Davis,  27  Mo.  App.  321 ;  France  v.  Evans,  7  West.  Rep.  277 ; 
Hausberger  v.  Pacific  Ry.  43  Mo.  200;  State  v.  Metzger,  26 
Mo.  65.  Masmchunettx :  Smith  v.  Rice,  11  Mass.  506;  Hatha- 
way V.  Clark,  5  Pick.  490;  Heath  v.  Wells,  5  Pick.  140;  Hol- 
yoke  V.  Haskins,  5  Pick.  20.  Semhle,  .Jenks  v.  Howland,  3  Gray 
536;  Brooks  v.  Adams,  11  Pick.  441;  Brooks  v.  (iraham,  11 
Pick.  445 ;  Commonwealth  v.  Hay,  126  Mass.  235.  Neiv  York: 
Rea  V.  M'Eachron,  13  Wend.  465 ;  Atkins  v.  Kinman,  20  Wend. 
241 ;  Ford  v.  Walsworth,  15  Wend.  449  ;  19  Wend.  334 ;  s.  c. 
again.  Dakin  v.  Hudson,  6  Cow.  221.  But  see  Barnes  v.  Harris, 
4  Const.  374;  Van  Deusen  v.  Sweet,  51  N.  Y.  378.  Peririr 
sylvania :  (Doubtful)  Messinger  v.  Kintner,  4  Birm.  97 ;  Camp 
V.  Wood,  10  Watts  118.  Semhle,  of  contrary  bearing,  Franklin 
V.  Goff,  14  S.  &  R.  181;  Lockhart  v.  Johns.  7  Pa.  St.  137;  Mc- 
Hale's  Appeal,  105  Pa.  St.  323;  See  McKee  v.  McKee,  14  Pa.  St. 
231 ;  llUnoiH :  Evans  v.  Pierce,  3  Seamon  468 ;  Douglas  v.  Whit- 
ing, 28  111.  362;  Pardon  v.  Devine,  23  111.  572.  Georgia:  Grier 
V.  McLandon,  7  Ga.  362.  Michigan :  Mudge  v.  Yaples,  58  Mich. 
307 ;  Clark  v.  Holmes,  1  Doug.  390.  Maine :  Granite  Bank  v. 
Treat,  18  Me.  340 ;  Ne^v  Hamjjshire :  See  the  State  v.  Rich- 
mond, 6  Fost.  232,  see  241  et  seq.  Arkansas :  McClure  v. 
Hill,  36  Ark.  268 ;  Webster  v.  Daniel,  47  Ark.  131,  at  p.  141. 
NeAV  Jersey :  Bergen  Turnpike  Co.  v.  State,  1  Dutch.  554.  loiva  : 
Morrow  v.  Weed,  4  Clarke  77 ;  United  States  Jurisdiction : 
Florentine  v.  Barton,  2  Wall.  210.  Alabama:  Sims  v.  Waters, 
65  Ala.  442.  Kentucky  :  See  Hart  v.  Grisby,  14  Bush.  542. 
Indiana :  Anderson  v.  Miller,  4  Blackf .  417  ;  See  Carr  v.  Goda, 


CREPPS    V.    DURDEN   ET   ALIOS.  1021 

84  Ind.  209 ;  Carver  v.  Carver,  64  Iiid.  194.  (Here  the  ques- 
tion came  up  directly  on  appeal,  and  not  collaterally.)  Hop- 
per V.  Lucas,  86  Ind.  43.  Ohio :  McCurdy  v.  Baughman,  1 
West.  Rep.  33.  Mississippi :  See  Edwards  v.  Turner,  14  S.  & 
M.  75 ;  Smith  v.  State,  13  S.  &  M.  140.  But  see  Taggert  v. 
Wise,  60  Miss.  870.  Connecticut:  Wattles  v.  Hyde,  9  Conn. 
10 ;  Hall  V.  Howd,  10  Conn.  514 ;  Stern  v.  Scott,  8  Conn.  480. 

Many  of  the  above  cases  are  to  be  considered  in  the  light  of 
the  fact  that  the  actions  were  under  special  statutes  of  a  limited 
character,  under  which  even  courts  of  superior  jurisdiction 
would  have  been  held  to  strict  limits  as  to  showing  juris- 
diction. 

The  early  rule  in  England,  as  unaffected  by  latter  statutes 
and  decisions,  seems  to  be  the  other  way,  even  on  appeal ;  Rex 
V.  Cleg,  1  Str.  475;  Rex  v.  Venables,  1  Str.  430.  But  see 
Connett  v.  Morley,  1  Q.  B.  18.  In  Texas  the  courts  of  justices  of 
the  peace,  being  established  by  the  Constitution,  are  held  practi- 
cally to  be  superior  courts.  The  rule  then,  as  to  such  courts, 
seems  to  be  that  the  same  presumption  holds  as  to  them  as  that 
which  applies  to  superior  courts  ;  Williams  v.  Ball,  52  Tex. 
603  ;  Holmes  v.  Buckner,  67  Tex.  107.  A  similar  view  seems 
to  obtain  in  Misssouri  as  to  probate  courts ;  Rowden  v.  Brown, 
91  Mo.  429;  Brooks  v.  Duckworth,  59  Mo.  49;  Johnson  v. 
Beazeley,  65  Mo.  250.  But  a  contrary  view  has  been  sustained 
as  to  justices  of  the  peace  ;  Bersch  v.  Schneider,  27  Mo.  101. 
A  like  view  has  obtained  in  California  as  to  probate  courts. 
Inco  V.  Commercial  Bank,  70  Cal.  339.  «  All  reasonable  intend- 
ments are  made  in  Alabama  in  favor  of  the  decrees  of  an  Or- 
phan's Court ;  dictum ;  Key  v.  Vaughan,  15  Ala.  497.  The 
general  principle  is  stated,  in  Lessee  of  Grignon  v.  Astor,  2 
How.  319,  to  be  that  jurisdictional  facts  must  appear  of  record, 
to  render  the  judgment  of  an  inferior  court  of  primd  facie 
validity. 

In  Rhode  Island,  by  special  statute,  the  jurisdiction  is  pre- 
sumed; Angell  V  Angell,  14  R.  I.  541.  And  see  Stern  v.  Ben- 
nett, 24  Vt.  303 ;  Lawrence  v.  Englesby,  24  Vt.  42 ;  Williams 
V.  Sharp,  2  Cart.  (Ind.)  101;  Denve  v.  Hanlon,  21  N.  J.  L. 
582 ;  Painter  v.  Henderson,  7  Pa.  St.  48 ;  Samuels  v.  Findlay, 
7  Ala.  635 ;  Hew  v.  Hew,  5  Pa.  St.  428 ;  MTarland  v.  Burdick, 
17  Vt.  165;  Moore  v.  Houston,  3  S.  &  R.  169;  Pierce  v.  Irish, 
31  Me.  254;  Cox  v.  Davis,  17  Ala.  714;  Savage  v.  Benham,  17 


102"2  CUKI'I'S    V.    Dl'KDKN    KT    AMns. 

Ala.  119;  Famir  /-.  Olmst.M.l,  21  Vt.  12:i;   liilliii<r.s  ,..  Russell, 
23  I'a.  St.  18!). 

(^/>)  Where  there  is  an  affirmative  fiuding  of  jurisdictional  facts 
in  the  judgment  of  an  inferior  court. —  Tlio  ([UL'Stiou  is  whether, 
or  not,  where  lliu  (jucstuju  of  jurisdiction  of  an  inferior  tribunal 
is  raised  collaterally,  and  tliere  is  an  express  Hndinj:^  oi  the 
jurisdictional  facts,  the  decision  is  conclusively  hindinjj^,  is  one 
■which  has  received  a  different  answer  in  different  states, 

(1)  It  is  universally  held  that  an  affinnative  finding  of 
jurisdictional  facts  by  a  domestic  and  inferior  tribunal  is  primd 
facie  evidence  of  such  facts  ;  Wetherell  v.  Goss,  20  Vt.  748, 
8emhle ;  Ilawkes  v.  lialdwin,  Hruyt.  85,  semhle ;  Staniford  v. 
Barry,  1  Aik.  321,  semhle  ;  Brown  v.  Foster,  G  R.  I.  504;  Reed 
V.  Whilton,  78  Iiid.  570. 

(2)  The  judgment  of  a  domestic  inferior  court.  — ■  liut  tlie  ques- 
tion whether  or  not  it  is  conclusivf  like  any  other  decision  of 
a  court,  upon  facts  brought  up  before  it  for  adjudication,  is 
differently  decided  in  different  states.  It  would  seem  that  the 
general  view  is  that  such  a  finding  is  conclusive  in  the  domestic 
tribunals.  See  Sheldon  v.  Wright,  1  Seld.  407,  at  514 ;  Turner 
V.  Malone,  24  S.  C.  398  (^semhle^  the  court,  a  probate  court, 
was  regarded  as  a  superior  one)  ;  Epi)ing  v.  Robinson,  21  Fla. 
30 ;  McCurdy  v.  Baughman,  1  West.  33  accord.  That  a  judg- 
ment of  an  inferior  court,  even  where  it  recites  aflirmatively 
a  finding  of  jurisdictional  facts,  may  be  impeached  collaterally 
in  the  domestic  jurisdiction.  See,  Wood  r.  Wood,  78  Ky.  624; 
Clark  V.  Holmes,  1  Doug.  300;  Black  v.  lilack,  4  Bradf.  174; 
Smelyer  v.  Loekhart,  07  Ind.  315. 

(3)  "Where  the  judgment  sought  to  be  questioned  is  that  of  an 
inferior  court  of  a  foreign  jurisdiction  or  of  another  state.  —  Where 
the  judgment  which  is  sought  to  be  questioned,  is  that  of  an  in- 
ferior court  of  another  state,  the  jurisdictional  facts  must  be 
shown.  If  the  inferior  court  acted  under  a  special  statute,  that 
must  be  proved  as  a  fact  as  a  part  of  the  case  of  the  party  who 
presents  the  record ;  Thomas  i'.  Robinson,  3  Wend.  207 ;  Hof- 
heimer  v.  Losen,  24  Mo.  App.  052 ;  Wood  v.  Wood,  78  Ky.  624. 
But  see  contra:  State  of  Ohio  v.  Iliiichmau,  27  Pa.  St.  470. 

(c)  Where  the  defect  of  jurisdiction  appears  on  the  face  of  the 
record.  —  Where  the  record  of  the  proceedings  of  an  inferior 
court,  when  the  judgment  is  questioned,  even  in  a  domestic 
tribunal,  affirmativel}*  shows  a  defect  of  jurisdiction,  the  pro- 


CREPPS    V.    BURDEN    ET    ALIOS.  1023 

ceedings  are  prima  facie  void ;  Coiikey  v.  Kingman,  24  Pick. 
115;  Hendrick  2;.  Cleveland,  2  Vt.  329;  Clapp  v.  Beardsley,  1 
Aik.  (Vt.)  168  ;  Jones  v.  Jones,  3  Dev.  360  ;  Munroe  v.  People, 
102  111.  406 ;  Dale  v.  Irish,  2  Barb.  639  ;  Holmes  v.  Field,  12 
111.  424  ;  State  v.  %e,  35  N.  H.  368.  cf.  Sigourney  v.  Sibley, 
21  Pick.  101 ;  Gay  v.  Minot,  3  Cush.  352. 

(f?)     Where   inferior  courts  act   under   special   statutory  powers. 
• — What  is  true  of  superior  courts  in  a  more  limited  degree, 
is,  it  seems,  true  to  the  fullest  extent  of  inferior  courts,  viz., 
where    they  act    under    special    statutory    powers,  the    record 
must  show  that  they  have  conformed  with  substantial  exact- 
ness to  the  requirements  of  the  statute,  or  the  whole  proceed- 
ing is  primd  facie  void;  Wattles  v.  Hyde,  9  Conn.  10  ;  Ford  v. 
Walsworth,  15    Wend.    449;    Dakin    v.    Hudson,  6    Cow.  24 
Hathaway  v.  Clark,  5  Pick.  490 ;  Heath  v.  Wells,  5  Pick.  140 
Holyoke  v.  Haskins,  5  Pick.  20  ;  Camp  v.  Wood,  10  Watts  118 
Bergen  Turnpike  Co.  v.  State,  1  Dutch.  554. 


LIABILITY  OF  JUDGES,  OFFICERS,  PARTIES,  AND  OTHER 
PERSONS,  FOR  ACTS  DONE  IN  PURSUANCE  OF  JUDICIAL 
AUTHORITY,    OR    IN    A    JUDICIAL    CAPACITY. 


Suits  against  Judges  of  Superior  Courts, 

It  would  now  appear  to  be  settled  to  a  degree  of  certainty, 
and  it  may  be  stated  as  a  general  proposition,  that  a  judge  of  a 
superior  court  of  record  is  not  liable  to  a  private  suitor  for  any 
act  whatever  done  in  a  judicial  capacity.  This  is  true,  how- 
ever erroneous  such  act  may  be.  It  is  true,  even  as  to  acts 
done  with  the  most  express  malice.  The  judge  is  liable  to 
impeachment  and  removal,  but  the  private  suitor  has  no  direct 
remedy  for  injuries  which  he  maj^  have  suffered. 

As  to  the  case  where,  as  in  Crepps  v.  Durden^  the  judge  has 
once  acquired  jurisdiction,  but  goes  beyond  and  outside  of  it, 
being  obliged  to  pass  upon  the  law  as  to  the  extent  of  his  juris- 
diction, it  is  now  probably  settled  in  most  jurisdictions,  beyond 
a  reasonable  controversy,  that  the  judge  of  a  superior  court  is 
not  responsible  for  any  of  his  acts. 

Where  there  never  existed  any  jurisdiction  in  the  judge  to 


1024  CKEITS    V.    DUltDEN    ET   ALIOS. 

act  at  all  in  the  premises,  the  law  is  not  so  clearly  settled.  The 
same  may  be  said  of  the  case  where  a  judge  of  a  superior  court 
acts  without  obtaining  jurisdiction  of  the  person  of  the  party 
who  complains  of  his  acts.  This  latter  case  must,  of  course,  be 
carefully  distinguished  from  that  in  which  a  jutlge  acts  upon 
evidence  which  is  in  fact  untrue,  but  which  is  suflicient  on  its 
face  to  entitle  the  judge  to  act.  This  case  of  action  upon  evi- 
dence apparently  sufficient  as  to  jurisdictional  facts,  is  treated 
infra^  and  comes  under  a  different  rule  from  that  affecting  the 
subject  now  discussed. 

The  Aveight  of  authority  seems  to  be  that  a  judge  of  a  supe- 
rior court  of  record  is  not  liable  civilly  for  any  act  whatever 
done  while  acting  judicially.  There  is  respectable  authority  to 
the  effect  that  this  view  is  too  broad ;  but,  on  the  whole,  it 
would  seem  to  be  fairly  established,  the  main  criticisms  being 
directed,  as  intimated  above,  to  the  application  of  the  rule  to 
cases  where  there  never  existed  any  jurisdiction  to  act  at  all,  or 
where  there  is  a  failure  of  jurisdiction  of  the  person  complain- 
ing of  the  judge's  act. 

The  main  difficulty  comes  in  determining  when  a  judge  may 
be  said  to  be  acting  judicially.  Is  he  always  acting  judicially 
when  sitting  at  the  place  of  holding  court  and  in  the  seat  of 
justice?  May  it  be  said  of  a  judge  of  a  superior  court,  as  it 
was,  in  Crcpps  v.  Burden.,  of  a  judge  of  an  inferior  court,  that 
whenever  he  transcends  his  jurisdiction  his  proceedings  are 
coram  non  judice,  and,  pro  tanfo,  subject  him  to  liability  ?  Is 
he  liable  for  the  consequences  of  ministerial  acts?  It  would 
seem  that  an  understanding  of  the  present  state  of  the  law  as 
to  these  and  related  points  can  best  be  reached  by  a  considera- 
tion of  the  growth,  historically,  of  the  law  bearing  upon  them. 
In  treating  this  branch  of  the  subject,  the  early  cases  which  are 
cited  mostly  refer  to  inferior  judicial  officers,  but  are  quoted  as 
exhibiting  the  growth  of  the  law  bearing  on  the  special  head 
now  discussed ;  regard  being  had,  also,  to  the  next  jioint,  —  as 
to  the  liabilities  of  judges  of  inferior  courts.  Book  of  Assise, 
21  Udw.  III.  mi.  Term,  pi.  16  (1347),  seems  to  be  the  first 
appearance  in  the  books  of  the  general  question  of  liability 
for  judicial  acts.  The  defendants  were  sued  for  conspiracy. 
It  was  held  to  be  an  answer  to  the  action  that  the  defendants 
were  grand  jurors,  and  had  found  the  indictment  in  the  matter 
complained  of. 


CREPPS    V.   BURDEN   ET    ALIOS.  1025 

Book  of  Assise,  27  Edw.  III.  Mich.  J.,  pi.  18,  p.  135  (1353), 
was  a  case  in  which  R.  was  indicted  for  that,  being  a  judge  of 
oyer  and  terminer,  certain  persons  were  arraigned  before  him 
for  trespass,  and  he  entered  of  record  that  they  were  indicted 
for  felony.  It  was  demanded  that  he  sliould  be  held  for  falsi- 
fying the  record.     It  was  held  that  the  presentment  was  bad. 

Year-Boole,  9  Henry  VI.  Hil.  pi.  9,  p.  60  (1431),  was  a  case  of 
an  action  against  an  escheater  for  fraud.  The  court  said  that 
no  such  action  lay  against  a  judge  of  record,  but  in  the  case  at 
bar  it  was  otherwise ;  for  an  escheator  is  not  a  judge  of  record, 
but  his  office  is  an  office  of  record. 

9  Edw.  IV.  pi.  10,  p.  3  (1470),  intimated  that  no  action  lay 
against  a  justice  of  the  peace  for  judicial  acts. 

Year-Books,  "21  Edw.  IV.  pi.  49,  p.  67.  Pigot,  J. :  If  a  justice 
of  the  peace  does  anything  apart  from  his  office,  he  may  be  held 
liable  ;  but  in  sessions,  otherwise. 

Floyd  V.  Barker,  12  Coke  23  (1608).  A  grand  inquest  had 
been  indicted  for  felony  in  the  county  of  Anglesea.  It  was  held 
in  Star  Chamber  that  neither  the  indictors,  nor,  among  others, 
the  judges  of  assize,  could  be  questioned  in  the  Star  Chamber 
for  what  they  had  done.  The  court  said :  "  And  the  reason  and 
cause  why  a  judge,  for  anything  done  by  him  as  a  judge,  by  the 
authority  which  the  king  hath  committed  to  him,  and  as  sit- 
ting in  the  seat  of  the  king  (concerning  his  justice),  shall  not 
be  drawn  in  question  before  any  other  judge  for  any  surmise  of 
corruption,  except  before  the  king  himself,  is  for  this ;  the  king 
himself  is  de  jure  to  deliver  justice  to  all  his  subjects ;  and  for 
this,  he  himself  cannot  do  it  to  all  persons,  he  delegates  his 
power  to  his  judges,  who  have  the  custody  and  guard  of  the 
king's  oath."  The  court  clearly  mark  the  distinction  between 
the  courts  of  record  and  those  not  of  record. 

The  Case  of  the  Marshalsea,  10  Coke  68  (1613).  Hall  brought 
trespass  for  assault,  &c.,  and  false  imprisonment,  against  various 
defendants.  The  defendants  justified  as  officers  and  judges  of 
the  Court  of  Marshalsea,  and  pleaded  prescription  for  the  court, 
the  prescription  giving  it  limited  and  special  powers.  "  It  is 
agreed  in  the  point,  also,  that  in  trespass  before  the  steward  and 
marshal,  if  none  of  the  parties  be  of  the  king's  household,  then 
it  is  coram  non  judice,  because  they  exceed  their  power.  The 
same  law,  if  they  hold  plea  out  of  the  verge.  .  .  .  But  when  the 
court  has  not  jurisdiction  of  the  cause,  then  the  whole  proceed- 


1026  CKEpra  v.  dlkhkn   i;t  alios. 

ing  is  coram  nonjwUee,  and  actions  will  lie  against  them  without 
any  regard  of  the  precept  or  proeess." 

Aire  V.  Sedyivick^  2  Rolle  195  (1C19).  The  L-ourt  intimates 
the  doctrine  of  inimnnity  to  a  judge  for  anything  done  in  a 
judicial  capacity. 

Martin  v.  Marshal^  Hohart  03  (^prior  to  1046).  Defendants 
were  sued  for  false  imprisonment.  They  pleaded  that  one  was 
mayor,  and  held  court  at  York  by  prescription  ;  that  the  otlier 
was  Serjeant  of  the  court,  and  the  latter  acted  by  command  of 
the  fornici-.  The  plea  did  not  biing  the  case  within  the  pre- 
scription as  [)k'a(l(.'d.     HchJ^  that  defendants  were  liable. 

Terry  v.  Huntinyton,  Ilardres  480  (1680).  The  case  was  a 
suit  against  commissioners  of  excise  for  assessing  low  wines  as 
strong  wines.  The  court  held  that  they  had  no  jurisdiction  so 
to  act,  and  were  liable.  Hall,  C.  B.:  ''First,  the  matter  here 
is  not  within  their  juristUction,  which  is  a  stinted,  limited  juris- 
diction; and  that  implies  a  negative,  viz.,  that  they  shall  not 
proceed  at  all  in  other  cases.  .  .  .  Thirdly,  if  such  commissioners 
exceed  their  authority,  what  they  do  is  coram  non  judice  ;  and 
then,  as  appears  10  Rep.,  their  otlicers  are  not  privileged." 

BushelVa  Case,  1  Mod.  119  (1686),  came  up  on  a  motion  for 
time  to  plead  by  the  Lord  Mayor  of  London  and  the  recorder. 
One  Bushell  brought  an  action  for  fuLsc  imprisonment.  Ihilc, 
C.  J.,  said:  "I  speak  my  mind  plainly,  that  an  action  will  not 
lie;  for  a  certiorari  and  a  habeax  corpus,  whereby  the  body  and 
proceedings  are  removed  hither,  are  in  the  nature  of  a  writ  of 
error ;  and  in  the  case  of  an  erroneous  judgment  given  by  a 
judge  which  is  reversed  by  a  writ  of  error,  shall  the  party  name 
an  action  of  false  imprisonment  against  the  judge  ?  No,  nor 
against  the  officers,  neither.     Time  was  given  as  prayed. 

Hamo7id  v.  Hotvell,  1  3fod.  184  (1686).  This  was  another 
phase  of  the  matter  stated  in  the  preceding  case.  The  plaintiif 
brought  an  action  for  false  imprisonment  against  the  mayor  of 
London,  the  recorder,  the  whole  court  of  Old  Bailey,  and  the 
sheriffs  and  gaoler,  for  false  imprisonment.  Some  Quakers  had 
been  indicted  for  a  riot.  The  court  directed  a  verdict  of  guilty, 
but  the  jury  found  for  defendants;  and  the  jury  were  committed 
for  finding  contrary  to  direction  in  matter  of  law.  One  of  the 
jury  brought  this  action,  after  being  discharged  on  habeas  corpus. 
Defendants  moved  for  further  time  to  plead.  The  court  declared 
their  opinions  against  the  action.    Atkins,  Justice :  "  It  was  never 


CKEPFS    V.    DUKDEN    ET    ALIOS.  1027 

imagined  that  justices  of  oyer  and  terminer  and  gaol  delivery 
would  be  questioned  in  private  actions  for  what  they  should  do 
in  execution  of  their  office." 

Grwinne  v.  Pool,  Lutw.  935  (1693).  Action  was  brought  in 
trespass  against  a  judge  and  officers  of  an  inferior  court.  On  a 
demurrer  to  a  reply  of  want  of  jurisdiction,  defendant  had  judg- 
mentc  On  the  appeal  (LutAvyche,  1560),  the  court  said  that  no 
action  whatever  lay  where  the  court  had  jurisdiction  (see  espe- 
cially, p.  1511).  It  was  held  that  the  action  was  not  well  brought, 
as  it  did  not  appear  that  defendant  had  knowledge  of  his  want 
of  jurisdiction. 

G-roenvelt  v.  Bruwell,  1  Ld.  Raym.  454  (1700).  Plaintiff  sued 
the  defendants,  as  censors  of  the  College  of  Physicians  of  Lon- 
don, for  false  imprisonment.  They  had  condemned  him  for 
malpractice.  Judgment  was  given  for  the  defendants,  the  court 
saying  that  the  action  of  the  censors,  they  having  jurisdiction, 
could  not  be  elsewhere  questioned. 

Smith  V.  Dr.  Bouchier,  2  Strange  993  (1735).  This  case  was 
one  of  a  suit  brought  for  false  imprisonment  against  the  vice- 
chancellor  of  the  University  of  Oxford  and  certain  officers  of 
his  court.  It  was  pleaded  that  the  defendant  B.  was  vice- 
chancellor,  &c.,  and  that  by  the  custom,  if  a  suitor  swore  that 
he  believed  that  his  opponent  would  run  away,  the  opponent 
might  be  arrested  and  held ;  that  A.  B.  swore  that  plaintiff  in 
this  suit  owed  him  a  debt,  and  complainant  believed  that  the 
then  defendant  —  plaintiff  here  —  would  run  away.  The  plea 
did  not  exactly  follow  the  custom  as  pleaded.  Demurrer.  The 
plea  was  held  to  be  bad,  the  court  saying  that,  as  the  defendants 
were  joined  together,  and  as  the  judge  and  the  plaintiff  in  the 
suit  knew  that  the  oath  was  not  sufficient,  all  were  liable. 

Miller  V.  Seare,  2  Wm.  Black.  1142  (1767).  Action  against 
commissioners  of  bankruptcy  for  illegally  imprisoning  a  person 
for  not  answering  satisfactorily  at  an  examination.  De  Grey, 
C.  J. :  1st.  It  is  agreed  that  the  judges  in  the  King's  Superior 
Court  of  Justice,  are  not  liable  to  answer  personally  for  their 
errors  in  judgment.  And  this  is  not  so  much  for  the  sake  of 
the  judges,  as  of  the  suitors  themselves ;  Bushel's  case,  Vaughn 
138.  2d.  The  like  in  courts  of  general  jurisdiction,  as  gaol 
delivery,  &c.  3d.  In  courts  of  special  and  limited  jurisdic- 
tion, having  power  to  hear  and  determine,  a  distinction  must 
be  made.     While   acting  within   the  line    of   their   authority. 


1028  CliKIM'S    V.    DUKDEX    KT    AI.IOS. 

tliey  are  protected  ;is  tn  errors  in  jiidt^fiiifiit ;  otliorwisc  tlu-y 
arc;  not  protected.  The  proteition,  in  legiirtl  to  the  superior 
courts  IS  absolute  and  universal;  with  res[)eet  to  the 'inferior 
it  is  only  while  they  act  witliiu  their  jurisdiction."  The 
commissioners  in  bankruptcy  were  held  to  be  of  limited  juris- 
diction and  were  held  liable,  as  they  had  acted  l)eyoMd  their 
jurisdiction. 

Perkin  v.  Proctor,  2  Wih.  382  (1708).  /A/-/,  that  trespass 
lay  a<^ainst  assignees  under  a  commission  of  bankruptcy  sued 
out  against  a  victualler,  such  person  not  l)eiug  witliiu  the 
Bankrupt  Acts.  The  court  said  ([>.  384):  "And  it  is  ni»t  like 
where  an  oHicer  makes  an  arrest  by  warrant  out  of  the  King's 
Court,  which  if  it  be  error  the  ollicer  nuist  not  contradict, 
because  the  court  hath  general  jurisdiction ;  but  here  (says 
Justice  C'roke)  the  justices  of  the  peace  have  but  a  [)articular 
jurisdiction." 

ParmuH  v.  Lni/il,  3  Wilx.  341  (1772).  Trespass  for  false 
imprisonment.  Defendant  had  caused  to  be  sued  out  a  void 
writ.  The  writ  was  from  a  court  of  superior  jurisdiction. 
Held,  that  defendant  was  liable ;  it  did  not  appear  that  he  had 
taken  any  active  part  in  the  arrest.  Dictum  ([).  34.")),  that  the 
officer  executing  the  writ  might  have  justilied  under  it. 

Harman  v.  Tappenden  et  al.,  1  Eant  555  (1801).  Action 
against  T.  and  fifteen  others.  Defendants  and  plaintiff  were 
members  of  a  company  of  fishermen  of  Kent.  Plaintiff  was  in 
an  assembly  of  the  company  and,  having  broken  a  l)y-law,  was 
ordered  to  pay  a  fine,  or  show  cause,  &c.  He  did  neither,  and 
without  proof,  was  condemned  to  be  prevented  from  fishing 
during  the  ensuing  oyster  season.  Held,  act  of  defendants  was 
irregular,  but  judicial,  and  they  could  not  be  held,  for  such  an 
act,  having  jurisdiction.  They  should,  liowever,  have  taken 
proof. 

Beaurain  v.  Scott,  3  Camp.  388  {Nisi  Prius)  (1812).  Held, 
that  where  an  ecclesiastical  court  excommunicated  a  man  in  a 
case  where  it  had  no  jurisdiction,  action  will  lay. 

Aekerley  v.  Parkinson,  3  M.  ^  Sel.  411  (1815).  Action  of 
case  for  excommunication.  Held,  that  defendants  (judges  of 
the  ecclesiastical  court)  were  not  liable,  as  they  had  jurisdic- 
tion, though  they  acted  erroneously. 

Taaffe  v.  Doicnes,  3  3Ioores  P.  0.  (Ireland,  1812)  41  n. 
Trespass  for  false  imprisonment.     Plea  that  plaintiff   was  ap- 


CKEPPS   V.    DUKDEN   ET    ALIOS.  1029 

prehended  under  a  warrant  issued  by  defendant  acting  judi- 
cially as  judge  of  King's  Bench.  Demurrer.  Held.,  that  the  plea 
was  good. 

Mayne.,  J. :  "•  The  difference  between  the  judges  of  the 
superior  and  inferior  courts  has  not  been  sufficiently  attended 
to."  As  to  judges  of  superior  courts,  "the  honest,  good  and 
constitutional  mind  will  alwa3\s  wish  to  find  them  entirely 
free  and  unbiased;  and  will  rather  entrust  them  with  a  high 
and  unquestionable  authority,  and,  if  guilty,  leave  their  punish- 
ment to  Parliament  alone,  than  hazard  their  fortitude  and  in- 
dependence by  the  alarm  and  question,  pains  and  expense  of  as 
many  actions  as  there  may  be  acts  of  duty  encountering  the 
bad  passions  and  prejudices  of  mankind."  This  case  is  notable 
as  being  perhaps  the  first  deliberate  decision  in  Great  Britain 
that  seems  to  support  the  modern  rule  to  its  full  extent. 

G-arnett  v.  Ferrand,  6  B.  ij-  Or.  611  (1827).  Suit  against  a 
coroner  for  trespass  in  turning  plaintiff  out  of  a  room  where 
the  defendant  was  holding  an  inquest.  Held,  that  no  action 
lay.  Tenterden,  C.  J.:  "The  court  of  the  coroner  is  a  court 
of  record  of  which  the  coroner  is  the  judge  ;  and  it  is  a  general 
rule  of  very  great  antiquity,  that  no  action  will  lie  against  a 
judge  of  record  for  any  matter  done  by  him  in  the  exercise  of 
his  judicial  functions." 

Mills  V.  Collett,  6  Bing.  85  (1829).  This  case  turns  upon 
the  same  principle  as  the  one  preceding.  The  court  dis- 
tinguishes C repps  V.  Durden. 

Scott  V.  Stansfield,  L.  R.  3  Exch.  220  (1868).  Action  for 
slander.  Plea,  that  the  words  were  spoken  by  the  defendant 
wliile  acting  as  a  county  judge.  Replication  that  the  words 
were  spoken  maliciously,  falsely,  without  reasonable  cause, 
with  no  foundation,  and  not  in  the  bond  fide  discharge  of  de- 
fendant's duty.  Demurrer.  Held,  that  the  replication  was  bad. 
Kelly,  C.  B.:  "The  question  arises,  perhaps,  for  the  first  time 
with  reference  to  a  county  court  judge,  but  a  series  of  decisions 
uniformly  to  the  same  effect,  extending  from  the  time  of  Lord 
Coke  to  the  present  time,  establish  the  general  proposition  that 
no  action  will  lie  against  a  judge  for  any  acts  done  or  words 
spoken  in  his  judicial  capacity  in  a  court  of  justice.  This  doc- 
trine has  been  applied  not  only  to  the  superior  courts,  but  to 
the  court  of  a  coroner  and  to  a  court  martial,  which  is  not  a 
court  of  record." 


1030  CKioiM's  \'.  i)ri;i>i:N   i:t  alios. 

Licas  V.  Lord  Brougham,  Q  C.  ^  P.  249  (1833).  Trespass 
for  false  imprisonment.  The  defendant  justified  as  Lord  Chan- 
cellor of  England.  He  had  committed  the  plaintilf  for  not 
obeying  an  order.  The  plea  was  not  guilty.  The  court  was  of 
opinion  that  the  defendant  had  authority  to  make  the  order,  l)ut 
it  seems  clear  from  the  discussion  that  it  would  not  have  held 
defendant  liable  had  he  lacked  such  authority. 

Calder  v.  JTalket,  3  Moore  s  P.  C.  28  (1839).  Defendant  sued 
in  trespass  for  false  imprisonment.  Defendant  was  judge  of  a 
provincial  magistrate's  court  in  India.  Act  21,  Geo.  III.  ch.  TO, 
§  24,  made  judge  of  such  courts  not  liable  for  any  act  done  as 
judge.  Held  (Parke,  B.),  this  action  is  designed  to  place  these 
judges  on  the  footing  of  judges  of  superior  courts  of  record. 
"For  English  judges,  when  they  act  wholl}-  \\itli()ut  jurisdic- 
tion, whether  they  may  supj)Ose  they  had  it  or  not,  have  no 
privilege.  Defendant's  court  had  no  jurisdiction  of  Euro})eans, 
but  it  did  not  appear  distinctly  in  the  evitU'iice  that  the  defend- 
ant knew  this.     To  hold  defendant  liable,  this  fact  must  appear. 

Linford  v.  Fitzroy,  13  Ad.  <)'•  El.  (xY.  *S'.)  240  (1849).  Held, 
that  no  action  against  a  magistrate  for  refusing  to  take  bail 
was  maintainable  without  proof  of  malice. 

Levy  V.  Moylan,  10  C.  B.  189  (1850).  Plaintiff  sued  a  judge 
of  a  county  court  in  England,  a  sheriff,  and  a  keeper  of  a  house 
of  correction.  The  warrant  set  forth  imprisonment  for  con- 
tempt. Held.,  that  although  the  court  was  of  inferior  and  of 
limited  jurisdiction,  the  writ  was  an  adjudication  that  the  judge 
had  been  insulted,  and  was  regular  on  its  face.  The  judge  had 
jurisdiction,  and  defendants  were  not  liable. 

Hoidden  V.  Smith,  19  L.  Jour.  N.  S.  Q.  B.  170  (1850).  Contra, 
where  a  judge  of  a  county  court  assumed  to  do  an  act  beyond 
his  territorial  jurisdiction. 

Ward  V.  Freeman,  2  //•.  C.  L.  460  (1852).  Held,  that  a  judge 
of  a  court  of  record  could  not  be  held  liable  for  refusing  to  cer- 
tify an  appeal.  "  No  action  will  lie  against  a  judge  for  what  he 
does  judicially,  though  it  should  be  laid  falso  malitiose  et  sci- 
enter;''  Barnadiston  v.  Soame,  6  St.  Tr.  1096  (1674).  "An 
action  will  not  lie  against  a  judge  for  anything  done  by  him 
quaternus  a  judge ; "  Hammond  v.  Howell,  2  Mod.  218. 

Kemp  V.  Neville,  10  C.  B.  N.  S.  523  (1861).  Defendant,  a 
vice-chancellor  of  Cambridge  University,  was  sued  by  plaintiff 
for  false  imprisonment.      He  had  authority  to  imprison  lewd 


CKEPPS    V.    DtJEDEN   ET   ALIOS.  1031 

females  found  in  company  with  undergraduates.  He,  in  good 
faith,  but  erroneously  and  without  due  inquiry,  imprisoned  plain- 
tiff.    Held^  that,  as  he  had  jurisdiction,  he  was  not  liable. 

Thomas  v.  Churton,  2  B.  cf-  S\  475  (1862).  Held,  that  a 
coroner  is  not  liable  civilly  for  words  slanderous,  falsely  and 
maliciously  spoken  by  him  in  an  address  to  a  jury. 

Miller  v.  Hagaart,  2  Shmv's  App.  Cas.  (Scotch')  125  (1824). 
Similar  decision  as  to  words  addressed  by  a  superior  court 
judge  to  counsel  in  course  of  a  trial. 

Frai/  V.  Blackhurn,  S  B.  ^  S.  576  (1863).  The  declaration 
alleged  that  defendant  was  a  judge  of  the  Court  of  Queen's 
Bench.  That  plaintiff  was  a  suitor  before  him.  That  she 
became  entitled  to  costs,  but  defendant  refused  to  make  the 
rule  absolute  for  them,  defendant  knowing  the  premises,  and  not 
regarding  his  duty,  &c.  Demurrer.  Judgment  for  defendant. 
Plaintiff  applied  for  leave  to  amend,  to  introduce  an  allega- 
tion of  malice  and  corruption.     Leave  refused. 

Gompton,  J. :  "  It  is  a  principle  of  our  law  that  no  action 
will  lie  against  a  judge  of  one  of  the  superior  courts  for  a 
judicial  act,  though  it  be  alleged  to  have  been  done  mali- 
ciously and  corruptly ;  therefore  the  proposed  allegation  would 
not  make  the  declaration  good." 

The  foregoing  cases  comprise  by  no  means  the  entire  list  of 
English  cases  bearing  upon  the  point  under  discussion.  The 
more  complete  list  of  authorities  in  the  English  courts  is  to  be 
found  in  the  English  note.  The  cases  have  been  chosen  merely 
to  show  the  development  of  the  rule  and  its  relation  to  the 
views  held  by  American  courts  upon  the  same  subject.  In 
this  country  the  decisions  have  brought  about  much  the  same 
result.  The  earlier  decisions  relate  to  courts  of  inferior  or 
limited  jurisdiction ;  but  some  are  ■  cited  here  as  showing  the 
development  of  the  law. 

Phelps  V.  jSill,  1  Bag  315  (1804).  It  was  held  that  a  judge 
of  probate  was  not  liable  for  failure  to  take  security.  "No 
man,"  says  the  court,  "would  accept  the  office  of  judge,  if  his 
estate  were  to  answer  for  every  error  in  judgment,  or  if  his 
time  and  property  were  to  be  wasted  in  litigations  with  every 
man  whom  his  decisions  might  offend."  See  Haynilton  v.  Wil- 
liams, 26  Ala.  529  (1855).     Accord. 

Yates  V.  Lansing,  5  Johns.  R.  282  (1810).  This  is  a  leading 
case  upon  this  subject.     In  this  case  the  plaintiff  sued  in  an 


1032  CREPl'S    V.    BURDEN    KT   ALIOS. 

action  of  debt  for  a  penalty.  The  declaration  alleged  tliat 
plaintiff  was  arrested  by  the  sheriff  under  a  writ  issuing  out 
of  the  Court  of  Chancery.  That  plaintiff  sued  out  a  writ  of 
haheas  corpus  before  one  of  the  judges  of  the  supreme  court, 
and  was  discharged  undi-i-  tin-  writ.  That  afterwards  the  sher- 
iff, "knowingly,"  »fcc.,  caused  the  plaintiff  to  be  re-arrested. 
There  was  a  statute  })roviding  the  penalty  sued  for  if  any  one 
caused  the  re-arrest  of  one  discharged  on  habeas  corpus.  The 
defendant  })leaded  that  at  the  time  of  and  before  the  arrest  he 
was  chancellor  of  the  state  of  New  York.  That  as  such  he, 
acting  judicially,  issued  the  writ  on  which  plaintiff  was  first 
imprisoned,  and  caused  the  plaintiff  to  be  committed.  That 
afterward  plaintiff  was  discharged  on  habeas  corpus.  That 
thereui)on  defendant,  "  as  chancellor  of  this  state  and  not  other- 
wise, at  a  Court  of  Chancery,"  «&;c.,  made  an  order  for  the 
arrest  of  the  i)laintiff.  To  this  there  was  a  demurrer.  The 
court  held  that  no  action  lay.  The  court  (^per  Kent,  Ch.)  held 
that  the  defendant  was  not  liable.  While  the  court  decided 
that  the  defendant  had  power  to  make  the  tirst  commitment, 
and  that  the  statute  imposing  a  penalty  did  not  apply,  the 
language  of  the  court  goes  much  farther  than  this,  and  is  inter- 
esting as  a  discussion  of  the  general  principles. 

"  Where  courts  of  special  and  limited  jurisdiction  exceed 
their  powers,"  says  Chancellor  Kent,  at  i)age  290,  "  the  whole 
proceeding  is  coram  non  judice,  and  all  concerned  in  such  void 
proceedings  are  held  to  be  liable  in  trespass.  (Case  of  the 
Marshalsea,  10  Co.  68;  Terry  v.  Huntington,  Ilardres  480.) 
But  I  believe  this  doctrine  has  never  been  carried  so  far  as  to 
justify  a  suit  against  the  members  of  the  superior  courts  of 
general  jurisdiction  for  any  act  done  by  them  in  a  judicial 
capacity." 

Briggs  v.  Wardwell,  10  3Iass.  356  (1813).  A  justice  of  peace 
was  held  liable  in  trespass  where  a  party  was  imprisoned  under 
an  execution  issued  only  two  or  three  hours  after  judgment,  — 
the  law  being  that  none  could  be  issued  within  twenty-four 
hours,  —  the  court  holding  that  issuing  the  execution  was  a 
ministerial  act. 

Lincoln  v.  Ilapgood,  11  Mass.  350  (1814).  Parker,  C.  J.: 
Held,  that  an  action  lies  against  the  selectmen  of  a  town  for 
refusing  the  vote  of  a  qualified  voter,  though  there  be  no 
malice.  [Questions  whether  defendants  acted  judicially  or 
ministerially  not  discussed.] 


C REPPS    V.    DUKDEN    ET    ALIOS.  1033 

Little  V.  Moore,  4  N.  J.  74  (1818).  Held,  that  a  justice  of 
the  peace  having  jurisdiction  was  not  hable  for  an  erroneous 
judgment.  "  In  courts  of  general  jurisdiction  an  action  never 
lies  against  the  judge,  because  he  has  jurisdiction  of  all  causes ; 
in  courts  of  limited  jurisdiction  it  lies  only  when  he  exceeds  that 
jurisdiction  and  therefore  is  not  in  the  exercise  of  his  judicial 
authority"  (^per  curimn'). 

Bigeloiv  v.  Stearns,  19  Johns.  39  (1821).  Trespass  for  false 
imprisonment.  Defendant  justified  as  a  justice  of  the  peace. 
The  statute  under  which  defendant  acted  provided  that  a  per- 
son before  commitment  should  be  brought  before  the  justice  ; 
but  plaintiff  here  was  committed  by  defendant  without  being 
produced.  The  record  was  regular.  It  was  held  that  the  plain- 
tiff might  go  behind  the  record,  and  that  defendant  was  liable, 
not  having  acted  within  his  jurisdiction.  Page  40.  "  If  a  court 
of  limited  jurisdiction  issues  a  process  which  is  illegal,  and  not 
merely  erroneous ;  or  if  a  court,  whether  of  limited  jurisdiction 
or  not,  undertakes  to  hold  cognizance  of  a  cause  without  having 
gained  jurisdiction  of  the  person,  by  having  him  before  them  in 
the  manner  required  by  law,  the  proceedings  are  void.  And 
in  case  of  a  limited  or  special  jurisdiction,  the  magistrate  at- 
tempting to  enforce  a  proceeding  founded  on  any  judgment, 
sentence,  or  conviction,  in  such  a  case,  becomes  a  trespasser." 

Cunningham  v.  Bucklin,  8  Coiv.  178  (1828).  Commissioners  of 
insolvency  were  sued  by  a  creditor  of  an  insolvent,  for  discharg- 
ing the  insolvent,  corruption  being  charged.  The  statute  made 
their  decision  conclusive  as  to  the  propriety  of  their  acts.  It 
was  held  that  they  were  not  liable. 

Randall  v.  Brigham,  7  Wall.  523  (1868).  Plaintiff,  an  attor- 
ney-at-law,  of  Massachusetts,  sued  defendant,  a  judge  of  the 
Massachusetts  Superior  Court,  for  wrongful  removal  of  plain- 
tiff from  the  bar.  The  court  below  instructed  the  jury  that  the 
action  could  not  be  maintained,  and  defendant  had  a  verdict. 
This  ruling  was  sustained.  Field,  J. :  Defendant  was  a  judge 
of  superior  jurisdiction.  "  In  reference  to  judges  of  limited  and 
inferior  authority,  it  has  been  held  that  they  are  protected  only 
when  they  act  within  their  jurisdiction.  If  this  be  the  case  with 
respect  to  them,  no  such  limitation  exists  with  respect  to  judges 
of  superior  or  general  authority.  They  are  not  liable  to  civil 
actions  for  their  judicial  acts,  even  when  such  acts  are  in  excess 
of  their  jurisdiction,  unless,  perhaps,  where  the  acts  in  excess  of 


1084  ci:Eri's  v.  duuden  kt  alios. 

jurisdiction  arc  done  maliciously  or  corruptly,  &c."  Jud^c  Field 
cites  no  authority  for  tlie  doubt  expressed  in  the  last  proposition. 
It  would  seem,  however,  that  the  action  of  the  defendant,  was, 
in  part,  proper.  This  ease,  with  the  law  as  expressed  in  the 
opinion,  seems  to  have  settled  the  law  in  the  United  States 
jurisdiction.     Consult  Galpin  v.  Page,  18  Wall.  350. 

Bradleij  v.  Fhher,  18  Wall.  335  (1871).  A  suit  l)y  an  attorney 
against  a  judge  who,  sitting  at  regular  term  in  tlie  District  of 
Columbia,  had  disbarred  him.  The  plaintift's  position  was, 
practically,  that  the  defendant's  action  had  been  so  taken  as  to 
make  it  coram  non  judice  and  void ;  the  plaintiff  sued  for  com- 
pensation. The  supreme  court  held  that  the  plaintiff"  could 
sustain  no  action.  The  court,  in  a  long  and  well-considered 
opinion,  said,  per  Field,  J. :  "  A  distinction  must  be  here  ob- 
served l)etween  excess  of  jurisdiction  and  the  clear  absence  of 
all  jurisdiclioii  over  the  subject-matter.  Where  there  is  clearly 
no  jurisdiction  over  the  subject-matter,  any  authority  exercised 
is  a  usurped  authority,  and  for  the  exercise  of  such  autliority, 
when  the  want  of  jurisdiction  is  known  to  the  judge,  no  excuse 
is  permissible." 

Busteed  v.  Parsons  (1875),  54  Ala.  303.  I'laintiff  sued  for 
false  imprisonment.  Defendant  pleaded  that  as  a  judge  of  the 
United  States  District  Court  for  the  Middle  District  of  Ala- 
bama, he  imprisoned  plaintiff.  The  declaration  alleged  that 
plaintiff  was  imprisoned  maliciously  and  without  probable 
cause.  Plea  alleged  a  due  complaint,  &c.  Issues  came  u})  on 
the  plea,  "  not  guilty,"  and  a  special  plea.  Plaintiff  urged  tliat 
the  charge  was  wholly  outside  of  the  jurisdiction  of  the  United 
States  District  Court.  Held,  that  the  defendant  was  not  liable 
in  any  event.  United  States  courts  are  of  superior  though  of 
special  jurisdiction.  The  court  seems  to  go  the  full  length  of 
holding  that  no  action  whatever,  of  a  civil  nature,  will  lie 
against  a  judge  of  a  superior  court  for  anything  done  in  a 
judicial  capacity,  even  though  he  be  in  error  in  holding  that 
given  facts  give  him  jurisdiction. 

Lange  v.  Benedict,  73  iV.  Y.  12  (1878).  Action  for  false 
imprisonment.  The  complaint  alleged  that  defendant  was  a 
judge  of  the  United  States  District  Court  for  the  Eastern  Dis- 
trict of  New  York.  He  presided  at  a  circuit  court.  Plaintiff 
was  indicted  and  convicted  for  stealing  mail  bags  from  the 
United  States,  the  value  being  found  to  be  less  than  $25.     By 


CREPPS    V.    DUEDEN    ET    ALIOS.  1035 

the  act  defining  the  crime  tlie  penalty  was  imprisonment  for 
one  year  or  $200  line.  Defendant  sentenced  plaintiff  to  hoth. 
Plaintiff  paid  the  fine.  On  habeas  corpus^  afterward,  defendant 
xe-sentenced  plaintiff  to  one  year  imprisonment.  The  snpreme 
court  of  the  United  States  discharged  plaintiff  from  imprison- 
ment. Demurrer  by  defendant  to  the  complaint  stating  all  the 
facts.  Held,  that  defendant  was  not  liable.  The  point  dis- 
cussed was  really  the  liability  for  the  second  sentence.  Folger, 
J. :  "  He  [the  defendant]  was,  in  fact,  sitting  in  the  place  of 
justice ;  he  was,  at  the  very  time  of  the  act,  at  court ;  he  was 
bound  by  his  duty  to  the  public  and  to  the  plaintiff  to  pass  as 
such,  upon  the  question  growing  out  of  the  facts  presented  to 
him,  and  as  a  -court  to  adjudge  whether  a  case  had  arisen  in 
which  it  was  the  demand  of  the  law,  that  on  the  vacating  of 
the  unlawful  and  erroneous  sentence  or  judgment  of  the  court, 
another  sentence  or  judgment  could  be  pronounced  upon  the 
plaintiff.  So  to  adjudge  was  a  judicial  act,  done  as  a  judge,  as 
a  court ;  though  the  adjudication  was  erroneous,  and  the  act 
based  upon  it  was  without  authority  and  void." 

The  court  had  jurisdiction  up  to  the  vacating  of  the  last 
sentence.  "  This  act  of  the  defendant  was  then  one  in  excess  of 
or  beyond  the  jurisdiction  of  the  court.  And  though  where 
courts  of  special  and  limited  jurisdiction  exceed  their  powers, 
the  whole  proceeding  is  coram  7ion  judice,  and  void,  and  all  con- 
cerned are  liable,  this  has  never  been  carried  so  far  as  to  justify 
an  action  against  a  judge  of  a  superior  court,  or  one  of  general 
jurisdiction  for  an  act  done  by  him  in  a  judicial  capacity."  See 
London  Law  Journal,  Aug.  24,  1878,  for  approving  comment. 

Pickett  V.  Wallace,  57  Cal.  555  (1881).  In  this  case,  the 
complaint  set  forth  that  the  defendant  sitting  as  the  supreme 
court,  knowing  that  the  plaintiff  had  not  committed  a  contempt 
and  not  having  acquired  jurisdiction  over  his  person,  mali- 
ciously, &c.,  adjudged  him  guilty  of  a  contempt  and  caused  liis 
imprisonment.  Demuri'er.  The  demurrer  was  sustained.  The 
court  said  that  "judges  of  courts  of  record,  of  superior  or 
general  jurisdiction,  are  not  liable  to  civil  actions  for  their  judi- 
cial acts,  even  when  the  acts  are  in  excess  of  their  jurisdiction, 
and  are  alleged  to  have  been  done  corruptly  and  maUciously." 
See  Turpen  v.  Booth,  56  Cal.  65.  This  case  goes  the  full 
length,  apparently,  of  holding  that  even  where  no  jurisdiction  is 
acquired  of  the  person,  a  superior  court  judge  is  not  responsible 


1036  CREPrS    V.    DUllDKN    KT    ALIOS. 

for  liis  acts,  while  acting  in  a  court  of  justice.  The  prevailing 
doctrines  of  the  law,  as  expounded  in  Lanje  v.  Benedict  and 
some  of  the  other  cases  supni^  are  scarcely  liively  to  be  changed, 
as  was  well  said  by  Chancellor  Kent  in  YateH  v.  Lansing.  "  No 
man  can  foresee  the  disastrous  consequences  of  a  precedent  in 
favor  of  such  a  suit.  Whenever  we  subject  the  established 
courts  of  the  land  to  the  degradation  of  private  prosecution,  we 
subdue  their  independence  and  destroy  their  authority.  Instead 
of  being  venerable  before  the  public,  they  become  contempti- 
ble ;  and  we  thereby  embolden  the  licentious  to  trample  up(jn 
everything  sacred  in  society,  and  to  overthrow  those  institu- 
tions which  have  hitherto  been  deemed  tlie  best  guardians  of 
civil  lil)erty."  The  general  conclusions  which  we  reach  upon  a 
review  of  the  cases,  seem  to  be  these:  (1)  That  a  judge  of  a 
superior  court  is  never  lial)le  civilly  for  any  act  of  a  judicial 
character  performed  wliile  sitting  in  the  place  of  justice  and 
acting  judicially,  pr()vi<led  he  has  jurisdiction  of  the  person  and 
subject-matter,  however  erroneous  or  even  malicious  such  act 
may  be.  (2)  That  he  is  not  liable  civilly  for  any  judicial  act, 
provided  he  has  once  acquired  jurisdiction  of  the  general  sub- 
ject-matter and  of  the  person,  even  though  he  exceed  that  juris- 
diction previously  acquired.  (3)  That  he  is  not  liable  civilly 
for  any  ju<licial  act,  even  though  he  does  not  in  fact  acquire 
jurisdiction  of  the  person,  if  he  has  reason  to  think  he  has  ac- 
quired jurisdiction  of  the  person,  and  is  called  upon  to  pass  upon 
the  question  whether  or  not  he  lias  jurisdiction,  provided  he  has, 
or,  perhaps,  even  has  reason  to  think  he  has,  jurisdiction  of  the 
general  subject-matter.  (4)  That  he  is  probably  liable  civilly, 
if  he  acts  without  apparent  jurisdiction  of  the  subject-matter, 
and  of  the  person.  (5)  That  he  is  considered  to  be  acting  judi- 
cially, whenever  liis  act  is  such  as  falls  within  the  general  powers 
of  a  judge,  even  if  apparently  ministerial  in  its  nature,  and  is 
sitting  in  the  place  of  justice,  acting  Avith  authority  as  judge 
of  the  court  of  wdiich  he  is  a  member. 

II. 

Suits  against  Judges  of  Inferior  Courts. 

(«)  Where  a  judge  of  an  inferior  court,  or  any  person  acting 
judicially,  acts  -within  his  jurisdiction,  erroneously,  but  in  good 
faith.  —  Our  review,  historically,  of  the  cases  bearing  upon  the 


CREPPS    V.    BURDEN    ET   ALIOS.  1037 

liabilities  of  judges  of  superior  courts,  makes  it  unnecessary  to 
go  over  the  same  ground  here,  as  to  the  development  of  the 
rule  bearing  upon  judicial  officers  of  inferior  jurisdiction.  The 
general  rule  is  that  where  a  judge  of  an  inferior  court,  or  any 
person  acting  judicially,  acts  within  the  general  scope  of  his 
jurisdiction,  and  in  good  faith,  but  acts  erroneously,  he  will  not 
be  liable  to  any  party  for  his  action.  This  proposition  would 
seem  to  be  very  clear,  both  from  the  cases  and  as  a  matter  of 
reason ;  Reed  v.  Conway,  20  Mo.  22 ;  Doswell  v.  Imfrey,  1  B. 
&  Cr.  163  ;  Bushell's  Case,  Vaughan  135  ;  Hammond  v.  Howell, 
1  Mod.  184 ;  Fausler  v.  Parson,  6  W.  V.  486 ;  White  v.  Morse, 
139  Mass.  162 ;  Levy  v.  Moylan,  10  C.  B.  189 ;  Tyler  v.  Alford, 
38  Me.  530;  Kibling  v.  Clark,  53  Vt.  379;  Hill  v.  Sellick,  21 
Barb.  207 ;  Weaver  v.  Devendorf,  3  Denio  117 ;  Brown  on  Ac- 
tions at  Law,  191-200  ;  Wheeler  v.  Patterson,  1  N.  H.  88;  Ken- 
dall v.  Stokes,  3  How.  U.  S.  R.  87  ;  Weckeley  v.  Geyer,  11  S. 

6  R.  39  ;  Jenkins  v.  Waldron,  11  Johns.  114  ;  Hitch  v.  Lam- 
bright,  66  Ga.  228 ;  Linford  v.  Fitzroy,  13  Q.  B.  240 ;  Holcomb 
V.  Cornish,  8  Conn.  375  ;  Fischer  v.  Langbein,  103  N.  Y.  84, 
dicta ;  Harman  v.  Brotherson,  1  Den.  537 ;  Landt  v.  Hilts,  19 
Barb.  283 ;  Marks  v.  Townsend,  97  N.  Y.  590 ;  Miller  v.  Adams, 

7  Lans.  133 ;  Hamilton  v.  Williams,  26  Ala.  527  ;  Lowther  v. 
Radnor,  8  East  113 ;  Pike  v.  Carter,  3  Bing.  78 ;  Calder  v.  Hal- 
ket,  3  Moore's  P.  C.  28,  at  p.  78  ;  Grove  v.  Van  Duyn,  44  N.  J. 
Law  654  ;  Morton  v.  Crane,  39  Mich.  31.  Accordingly,  it  has 
been  held  that  where  a  surveyor-general  who,  as  a  public  offi- 
cer was  obliged  to  exercise  his  discretion,  discharged,  errone- 
ously, a  surveyor,  he  was  not  liable  ;  Reed  v.  Conway,  20  Mo.  22. 
Where  commissioners  of  bankruptcy,  having  jurisdiction  of  the 
subject-matter,  decided  erroneously,  they  were  held  not  to  be 
liable  ;  Doswell  v.  Imfrey,  1  B.  &  Cr.  163.  A  similar  decision 
has  been  reached  regarding  a  county  board  of  registration  ;  Faus- 
ler V.  Parson,  6  W.  V.  486  ;  action  of  a  commander  of  a  war- 
ship, Wilkes  V.  Dinsman,  7  How.  (U.  S.)  89 ;  Burns  v.  Nowell, 
5  Q.  B.  D.  444.  School  trustees  who,  in  course  of  their  duties, 
made  a  decision  which  was  erroneous,  but  was  made  in  good  faith, 
were  held  not  to  be  liable ;  Hill  v.  Selhck,  21  Barb.  207.  An 
assessor  of  taxes,  who  acts  judicially,  though  erroneously,  is  not 
liable  for  his  erroneous  act ;  Weaver  v.  Devendorf,  3  Den.  117. 
So  it  has  been  held  that  where  a  moderator  of  a  town  or  other 
meeting,  acts  judicially,  but  erroneously,  in  refusing  a  vote  of  a 


1038  CREPPS    V.    DUKDEN    ET    ALIOS. 

qualified  voter  or  in  any  similar  matter,  he  is  not  liable;  Wheeler 
V.  Patterson,  1  N.  H.  88 ;  Weckeley  v.  Geyer,  11  S.  &  R.  35,  at 
p.  89;  Jenkins  v.  Waldron,  11  Johns.  114. 

In  Kendall  v.  Stokes,  3  How.  U.  S.  Rep.  87,  the  suit  was  by 
a  government  contractor  against  a  secretary  of  the  United 
States  Treasury  for  refusing  to  allow,  upon  the  government 
books,  certain  items.  This  was  shown  to  be  an  error  of  judg- 
ment, but  the  error  was  without  bad  faith.  It  was  held  that, 
as  the  defendant  acted  quite  in  good  faith,  and  judicially,  he 
was  not  liable.  See  Gridley  Exr.,  &c.,  v.  Lord  Palmerston,  7 
J.  B.  Moore  91. 

(J))  Where  a  judge  of  an  inferior  court  or  any  person  acting  in 
a  judicial,  but  inferior  and  limited  capacity,  acts  beyond  his  juris- 
diction. —  This  includes  the  precise  instance  presented  by  our 
principal  case,  and  although  the  rules  of  law  in  this  regard 
have  undergone  some  slight  modification  since  the  decision  in 
Crepps  V.  Durden,  the  general  rule  is  still  in  most  jurisdictions 
substantially  what  it  was  as  established  by  that  case.  The 
"  Jervis  Acts  "  (11  &  12  Vict.  ch.  44)  have  not,  in  general,  been 
copied  in  the  states,  and  the  questions  touched  by  them  have 
been  left  to  be  worked  out  by  the  courts. 

In  G-rider  v.  Tally,  11  Ala.  422,  it  was  held  that  when  a 
probate  judge,  empowered  and  directed  under  the  statute  to 
grant  licenses,  refused  a  license  properly  applied  for,  he  was 
liable.  It  will  be  observed  here  that  the  judge  was  held  not 
for  any  positive  tort  committed  in  the  exercise  of  his  jurisdic- 
tion, but  for  refusing  to  act  where  the  law  called  for  action. 
The  act  was  reofarded  as  ministerial. 

White  V.  Morse,  139  Mass.  162,  is  a  case  which,  at  first  sight, 
and  even,  perhaps,  upon  consideration,  may  be  found  to  be  con- 
trary to  the  principles  established  in  Crepps  v.  Durden.  In 
White  V.  Morse  the  defendant,  a  trial  justice,  rendered  a  judg- 
ment for  costs  in  violation  of  a  statutory  provision,  and  the 
plaintiff  sued  for  acts  done  under  that  judgment.  It  was  held 
that  the  defendant  was  not  liable,  the  court  saying  (p.  163), 
"  his  error  was  an  error  of  judgment  in  deciding  a  question  of 
law  which  he  was  obliged  to  decide,  and  which  was  within  the 
scope  and  limits  of  his  jurisdiction.  For  such  an  error  he  was 
not  liable  to  the  plaintiff  whose  proper  remedy  was  by  an 
appeal."  On  the  whole,  it  would  seem  that  this  case  is  directly 
contrary  to    Crepps  v.  Durden  (which  case,  by  the  way,  is  not 


CREPPS    V.    DURDEN    ET   ALIOS,  1039 

cited  in  White  v.  Morse ;  in  Crepps  v.  Burden  the  defendant 
had  equally  and  in  the  same  sense  to  decide  "  a  question  of 
law  which  he  was  obliged  to  decide,  and  which  was  within  the 
scope  and  limits  of  his  jurisdiction,"  that  is,  the  general  duty 
to  punish  the  offences  of  which  the  prisoner  was  charged.  The 
decision  of  the  justice  was  beyond  his  jurisdiction  as  much  in 
one  case  as  the  other.  Where  a  justice  of  the  peace  has  author- 
ity to  grant  attachments  in  a  certain  manner,  and  he  acts  in 
a  different  way,  he  is  liable ;  People  v.  Jarrett,  7  111.  App.  566 ; 
see  II.  Hilliard  on  Torts,  ch.  28,  §  5.  A  judge  of  a  county 
court  in  England,  acting  beyond  his  territorial  jurisdiction,  is 
liable  for  the  consequences  of  his  illegal  judgment ;  Houlden  v. 
Smith,  19  L.  J.  N.  S.  23,  170.  Where  a  justice  of  the  peace  had 
jurisdiction  to  commit,  but  also  inflicted  a  penalty,  he  was  held 
to  be  liable ;  Patzack  v.  Von  Gerichten,  10  Mo.  App.  424 ;  ac- 
cord, Phillips  V.  Thrall,  26  Kas.  780. 

In'Durden  v.  Belt,  61  G-a.  545,  where  a  justice  acted  under  a 
garnishment  proceeding  which  was  void,  he  was  held  liable. 

In  McClure  v.  Hill,  36  Ark.  268,  the  affidavit  in  replevin 
before  a  justice  of  the  peace  did  not  show  that  the  goods  were 
under  $300  in  value,  the  limit  of  his  jurisdiction.  The  goods 
were  of  a  greater  value.  Held,  that  both  the  justice  and  the 
officer  who  executed  the  attachment  were  liable.  Where  a  jus- 
tice of  the  peace  distrained  goods  of  a  person  not  liable  to 
militia  fines,  he  was  held  to  be  liable ;  Wise  v.  Withers,  3  Cr. 
331.  It  has  been  held  that  when  a  justice  gave  a  judgment 
against  a  person  under  an  unconstitutional  act  of  the  legisla- 
ture, and  the  person  suffered  thereby,  he  was  liable  ;  Piper  v. 
Pearson,  2  Gray  120 ;  Clark  v.  May,  2  Gray  410 ;  Sullivan  v. 
Jones,  2  Gray  570.  A  justice  of  the  peace,  or  other  inferior 
judicial  officer,  must  pursue  his  statutory  authority  with  rea- 
sonable strictness,  or  he  will  be  liable ;  Bigelow  v.  Stearns,  19 
Johns.  39;  and  see  McClure  v.  Hill,  36  Ark.  268;  Hall  v. 
Howd,  10  Conn.  514 ;  Starr  v.  Scott,  8  Conn.  480 ;  Estopinal  v. 
Peyroux,  37  La.  Ann.  477 ;  Brooks  v.  St.  John,  25  Hun  540. 
Where  a  justice  of  the  peace  issues  an  attachment  against  a 
defendant,  and  the  cause  of  action  is  not  one  of  those  within 
the  statutory  grounds,  the  justice  is  liable  for  the  consequences 
of  his  action  ;  Wright  v.  Rouss,  18  Neb.  234.  Consult  in  this  con- 
nection, Carratt  v.  Morley,  1  Q.  B.  18 ;  Houlden  v.  Smith,  14  Q. 
B.  839.      A  case  which  seems  to  have  a  bearing  contrary  to  the 


1040  CREPPS    V.    DL'KDKN    KT    AI.loS. 

cases  cited  from  2  Gray^  supra,  is  that  of  Ileiike  v.  McCortl,  55 
la.  378.  In  that  case  the  defendant  issued  a  warrant  by  virtue 
of  which  liquors  were  seized,  under  a  void  city  ordinance.  Held^ 
that  defendant  was  not  liable. 

In  Hill  V.  SeU'tck,  21  Barb.  207,  the  defendants,  who  were 
school  trustees,  seem  to  have  acted  under  a  mistake  of  laiu  as 
well  as  fact.  They  were,  however,  held  not  to  be  liable  ac- 
cord, Weaver  v.  Devendorf,  3  Den.  117 ;  Linford  v.  Fitzroy, 
13  Q.  B.  240  ;  Holcomb  v.  Cornish,  8  Conn.  375,  and  other  cases, 
supra.  These  cases  all  proceed  upon  the  assumption  of  pre- 
viously acquired  jurisdiction.  Wlicre  a  justice,  of  the  peace, 
having  acquired  jurisdiction  of  one  defendant  only,  causes  exe- 
cution to  issue  against  tAvo,  he  is  liable  to  the  one  of  whom  he 
did  not  acquire  jurisdiction  ;  I^ittle  v.  ]\Ioore,  1  South.  74.  It 
is  well  settled  also  that  where  a  justice  or  other  officer  act- 
ing judicially,  is  obliged  to  pass  in  his  judicial  capacity  upon 
some  jurisdictional  fact,  and  he  decides  it  in  favor  of  jurisdic- 
tion he  will  not,  when  acting  honestly,  be  liable  for  an  erroneous 
decision  of  such  fact.  This  is  subject  to  the  qualification,  that 
he  must  have  some  evidence  upon  which  to  pass.  This  is  to  be 
carefully  distinguished  from  the  case  when,  as  in  Crcpps  v.  Dur- 
den,  his  error  of  decision  arises  from  a  mistake  as  to  his  legal 
powers.  These  cases  are  also  to  be  distinguished  from  cases 
like  Hill  V.  SelUck,  supra,  where  the  mistake  of  law  is  after  the 
court  has  acquired  full  jurisdiction. 

Tlie  case  of  Morton  v.  Crane,  39  Mich.  526,  is  important  in  this 
connection.  The  plaintiff  sued  defendant,  who  was  a  justice  of 
the  peace,  in  trespass  on  the  case  for  acts  done  under  an  illegal 
judgment.  Among  other  irregularities  or  defects  in  the  pro- 
ceedings, it  appeared  that  the  summons  was  served  by  the  plain- 
tiff in  that  proceeding.  At  the  return  day  a  person  who  was 
not  authorized  appeared  for  the  defendant, — plaintiff  here, — 
and  consented  to  an  adjournment.  The  service,  it  seems,  was 
void.  Judgment  was  entered  against  the  plaintiff  in  this  suit 
for  non-appearance  upon  the  adjourned  day,  and  under  the 
judgment  the  plaintiff  suffered  injury  for  which  he  sues.  The 
court  (decision  by  Cooley,  J.)  held  that  the  defendant  was  not 
liable.  The  court  used  the  following  language :  "  That  the 
action  was  judicial  is  unquestionable.  A  suit  had  been  begun, 
and  it  was  the  duty  of  the  justice  to  call  it  and  see  if  the 
parties   appeared.      The    plaintiff   did  appear    and    Hitchcock 


CREPPS    Y.    DUKDEN    ET   ALIOS.  1041 

answered  for  the  defendant.  If  he  answered  with  authority, 
the  justice  was  possessed  of  the  case  for  the  purposes  of  a  trial ; 
but  if  not,  the  suit  would  go  down  unless  a  new  summons  was 
taken  out.  A  question  was  therefore  presented  for  the  deci- 
sion of  the  justice,  whether  Hitchcock  was  or  was  not  author- 
ized to  appear,  and  upon  this  the  justice  was  compelled  to  pass. 
No  reason  can  be  assigned  for  holding  him  responsible  for  an 
erroneous  decision  of  this  question  that  would  not  apply  to  the 
case  of  an  error  at  any  stage  of  the  case."  The  difficulty  here 
seems  to  lie  in  holding  that  the  court  ever  acquired  jurisdiction. 
Justice  Cooley  expressly  says  in  his  decision  that  if  there  had 
been  no  appearance,  the  suit  would  have  gone  down.  The 
true  j^rinciple  here  seems  to  be  that  a  justice  is  always  protected 
in  any  decision,  however  erroneous,  if  the  facts  as  presented 
warranted  him  in  deciding  that  he  had  jurisdiction,  although 
he  in  fact  never  acquired  it.  When  a  justice  of  the  peace  acts 
in  good  faith  upon  a  complaint  setting  forth  all  facts  necessary 
for  his  action,  he  is  not  liable,  even  though  the  statements  are 
not  in  fact  true.  Morton  v.  Crane,  supra  ;  Lowther  v.  Radnor, 
8  East  113;  Pike  v.  Carter,  3  Bing.  78;  Calder  v.  Halket,  3 
Moore's  P.  C,  28,  at  p.  78 ;  Miller  v.  Grice,  2  Rich.  (Law)  27. 

But  the  rule  is,  of  course,  otherwise,  if  the  complaint  does 
not  show  jurisdictional  facts  and  they  do  not  in  truth  exist ; 
Carratt  v.  Morley,  1  Q.  B.  18,  and  many  cases,  supra. 

(6'}  Where  a  justice  or  other  judicial  ofBcer  of  a  court  of  inferior 
jurisdiction  acts  maliciously  or  fraudulently.  —  Whether  or  not 
where  a  justice  of  the  peace  or  other  judicial  officer  of  an  in- 
ferior court,  acting  within  his  jurisdiction,  judicially  and  not 
ministerially,  is  liable  for  acting  erroneously  and  maliciously,  is 
a  question  upon  which  there  is  an  apparent  conflict  of  views. 
As  it  is  not  closely  connected  with  our  subject,  we  shall  pass  it 
over  with  slight  comment. 

In  Maryland  such  an  officer  so  acting  has  been  held  liable ; 
Knell  V.  Briscoe,  49  Md.  414.  So  in  Iowa,  perhajys  New  York, 
Louisiana,  perhaps  South  Carolina ;  Abrams  v.  Carlisle,  18  S.  C. 
242 ;  Go  wing  v.  Gowgill,  12  Iowa  495 ;  Tomkins  v.  Sands,  8 
Wend.  462 ;  Estopinal  v.  Peyroux,  37  La.  Ann.  477. 

In  Massachusetts,  Indiana,  Iowa,  'prohably  Michigan,  a  con- 
trary view  prevails ;  Pratt  v.  Gardner,  2  Cush.  63 ;  Kress  v. 
Wagoner,  65  Ind.  106 ;  Wasson  v.  Mitchell,  18  Iowa  153 ;  Lon- 
degan  v.  Hammer,  30  Iowa  508.     Dictiun  of  Cooley,  J.,  in  Mor- 


1042  CRKl'l'S    V.    DUUDEN    ET    AI.IOS. 

ton  V.  Crane,  39  Mich.  526,  at  p.  530 ;  Wilson  v.  Mayor,  1  Dev. 
595,  at  p.  599 ;  Anderson  v.  Park,  57  Iowa  09 ;  Stone  v.  Graves, 
8  Mo.  148 ;  Taylor  v.  Doremus,  16  N.  J.  (Law)  473.  See,  as 
to  general  principle,  Linford  v.  Fitzroy,  13  Q.  15.  240  ;  Gelen 
V.  Hall,  2  H.  &  N.  379. 

The  weio-ht  of  authority  probably  is  that  no  action  lies 
against  a  judicial  oi'licer,  having  jurisdiction,  when  acting  judi- 
cially, even  though  he  acts  erroneously  and  with  malice.  A 
similar  rule  applies  to  grand  jurors ;  Turpen  v.  Booth,  56  Cal.  65. 
Neglect  by  a  justice  to  perform  his  official  duty  as  to  a  mhiis- 
terial  act  may  render  him  liable ;  Carpenter  v.  Warner,  138 
Ohio  St.  416. 

Many  of  the  cases  which  hold  that  a  judicial  officer  is  liable 
for  malicious  action  may  be  explained  on  the  ground  that,  in 
the  view  of  the  court,  the  act  complained  of,  e.g.^  illegally  re- 
fusing bail,  was  a  ministerial  and  not  a  judicial  act. 

III. 

Liability  of  Ministerial  Officers  who  act  under  Void  Proceedings. 
—  As  this  is  not  closely  connected  with  our  subject,  it  will  be 
treated  briefly.  It  seems,  on  the  AVhole,  however,  to  be  suffi- 
ciently germane  to  the  subject  for  mention. 

As  a  rule,  an  officer  acting  under  the  warrant  of  a  court, 
where  the  warrant  is  regular  upon  its  face,  is  not  liable,  even  if 
the  judgment  upon  which  the  warrant  is  founded  is  erroneous  or 
even  void;  Levy  v.  Moylan,  10  C.  B.  189;  McClure  v.  Hill,  36 
Ark.  268  ;  Baird  v.  Campbell,  4  W.  &  S.  191 ;  Mills  v.  Martin, 
19  Johns.  7  ;  Scott  v.  Rucker,  19  Mo.  App.  587 ;  Elsmore  v.  Long- 
fellow, 76  Me.  128;  Collins  v.  Mann,  15  W.  Va.  171;  Clark 
V.  Bowe,  60  How.  Pr.  98;  Chipstead  v.  Porter,  63  Ga.  220; 
Archibeque  v.  Miera,  1  New  Mexico  419  ;  Lake  v.  Biller,  1 
Ld.  Ray.  733 ;  Shipman  v.  Clark,  4  Den.  446 ;  Foster  v.  Petti- 
bone,  20  Barb.  350 ;  Hallett  v.  Byrt,  Carthew  380 ;  Simpson  v. 
Reynolds,  14  Barb.  506 ;  Andrews  v.  Maris,  1  Q.  B.  3  ;  Webb  v. 
Batchelor,  1  Vent.  273 ;  Chegnay  v.  Jenkins,  1  Seld.  376 ; 
Patchin  V.  Ritter,  27  Barb.  34 ;  Wood  v.  Davis,  34  N.  H.  328 ; 
Wood  V.  Alleghany  City,  18  Pa.  St.  55 ;  Cody  v.  Quinn,  6  Ired. 
(Law)  191 ;  Hecker  v.  Jarrett,  3  Brim.  404  ;  Billings  v.  Russell^ 
23  Pa.  St.  189 ;  People  v.  Warren,  5  Hill  440  ;  People  v.  Cooper, 
13  Wend.   379;  Webber  v.   Gay,   24   Wend.   485;    Watson  v. 


CREPPS    V.    DURDEN    ET    ALIOS.  1043 

Watson,  9  Conn.  141 ;  State  v.  Weed,  21  N.  H.  262 ;  Champaign 
County  Bank  v.  Smith,  7  Ohio  St.  42 ;  Spragiie  v.  Richard,  1 
Wis.  457 ;  Henderson  v.  Brown,  1  Carr.  92 ;  Stoddard  v.  Tar- 
bell,  20  Vt.  321 ;  Darling  v.  Brown,  10  Vt.  148  ;  Savacool  v. 
Boughton,  5  VVend.  170  ;  Hecker  v.  Jarrett,  3  Brim.  404  ;  Moore 
V.  Houston,  3  S.  &  R.  169,  sem.  ;  Robinson  v.  Brennan,  90  N. 
Y.  208  ;  Barr  v.  Boyles,  96  Pa.  St.  31 ;  Norcross  v.  Nunan,  61 
Cal.  640  ;  Philipps  v.  Spotts,  14  Neb.  139 ;  Collins  v.  Mann,  15 
W.  Va.  171.  But  see  Martyn  v.  Podger,  5  Burr.  2631 ;  Daman 
V.  Bryant,  2  Pick.  411 ;  Hill  v.  Bateman,  2  Str.  710 ;  Howard 
V.  Gosset,  10  Q.  B.  359  ;  Morse  v.  James,  Wills  122 ;  Tobin  v. 
Addison,  2  Strobh.  3;  Ford  v.  Babcock,  1  Den.  158;  Barrett 
V.  Crane,  16  Vt.  246  ;  Cable  v.  Cooper,  15  Johns.  152 ;  Brown 
V.  Compton,  8  T.  R.  424 ;  case  of  the  Marshalsea,  10  Coke  68a. 

It  is  otherwise  if  the  warrant  shows  upon  its  face  that  the 
judgment  upon  which  it  is  founded  was  in  a  proceeding  coram 
non  judice ;  Hall  v.  Howd,  10  Conn.  514  ;  Starr  v.  Scott,  8 
Conn.  480  ;  Beazeley  v.  Dunn,  8  Rich.  345  ;  Sagendorph  v.  Shult, 
41  Barb.  102  ;  Carratt  v.  Morley,  1  Q.  B.  18 ;  Mitchell  v.  Har- 
mony, 13  How.  115  ;  Gruman  v.  Raymond,  1  Conn.  39  ;  Sanford 
V.  Nichols,  13  Mass.  286  ;  Bonaker  v.  Evans,  16  Q.  B.  162;  Clarke 
V.  Bond,  7  Baxter  288 ;  Kentzler  v.  Chicago,  &c.,  Ry.,  47  Wis. 
641. 

In  Fisher  v.  3IcG-in,  1  Grai/1,  it  was  held  that  an  officer  exe- 
cuting a  warrant  under  a  judgment  of  an  inferior  court,  which 
judgment  was  founded  upon  an  unconstitutional  statute,  was 
liable  ;  Kelly  v.  Bemis,  4  Gray  83 ;  Henke  v.  McCord,  55  la. 
378,  semble  contra. 

IV. 

Liability  of  Parties  and  Attorneys  who  instigate  Proceedings 
which  are  Invalid. 

The  remark  which  applied  to  (III.)  supra^  regarding  connec- 
tion with  our  subject  applies  here.  The  subject  will  be  treated 
briefly  and  without  consideration  of  the  finer  distinctions  pre- 
sented by  the  cases.  To  avoid  repetition,  the  numerous  cases 
which  involve  the  subject  under  this  head,  and  which  have  been 
cited  above,  will  be  cited  here  only  so  far  as  seems  necessary 
to  make  the  subject  clear.  As  a  general  rule,  neither  a  party  or 
attorney  is  liable  for  the  consequences  of  an  illegal  proceedings 


1044  CKEl'PS    V.    bUKUEN    KT    ALIUS. 

where  his  acts  do  not  amount  to  a  malicious  prosecution,  and 
where  he  takes  no  active  and  positive  part  in  carrying  out  the 
process.  When  a  person  applies  to  a  court  and  properly  states 
the  facts,  and  the  court  takes  some  action  under  which  another 
person  receives  injury,  the  person  applying  to  the  court  is  not, 
in  general,  liable,  wdiere  he  takes  no  active  part,  even  if  the 
proceeding  is  without  authority  and  void;  West  v.  Small  wood, 
3  M.  &  W.  418.  Consult  Painter  v.  Liverpool  Gas  Co.,  3  Ad.  & 
E.  438.;  Cohen  v.  Morgan,  6  Dowl.  &  Ry.  8  ;  Barker  v.  Stetson, 
7  Gray  53;  Baid  v.  Campbell,  4  W.  &  S.  191 ;  Field  v.  Ander- 
son, 103  111.403;  Carratt  v.  Morely,  1  Ad.  &  El.  N.  S.  18; 
Bigelow  on  Torts,  3d.  ed.  128 ;  Cooper  v.  Harding,  7  Q.  B. 
928 ;  Peckham  v.  Tomlinson,  6  Barb.  253 ;  Williams  v.  Smith, 
14  C.  B.  N.  S.  596;  Smith  v.  Sydney,  L.  R.  5  Q.  B.  203  ;  Cod- 
rington  v.  Lloyd,  8  Ad.  &  El.  449 ;  Deyo  v.  Van  Valkenburgh, 
5  Hill  242.  These  numerous  cases  in  accord  among  those  cited 
above. 

In  Curry  v.  Prin<jh\  11  Johns.  444,  a  defendant  was  held 
liable  when  he  had  applied  to  a  magistrate  and  procured  the 
plaintiff's  arrest  without  due  cause  shown.  See  case  of  the 
Marshalsea,  10  Coke  68a. 

Where  the  attorney  or  party  takes  active  part  in  the  execu- 
tion of  a  writ  founded  upon  a  proceeding  wliicli  is  coram  non 
jndire,  such  officer  or  party  may  be  held  liable ;  Barker  v. 
Braham,  2  Wm.  Bl.  366 ;  Deal  v.  liogne,  20  Pa.  St.  228 ;  Emery 
V.  Hapgood,  7  Gray  55  ;  West  v.  Smallwood,  3  M.  &  W.  418 ; 
Parsons  v.  Loyd,  3  Wils.  341 ;  Bryant  v.  Chilton,  1  M.  &  W. 
408 ;  Codrington  v.  Lloyd,  8  Ad.  &  El.  449 ;  (xreen  v.  Elgie,  5 
Ad.  &  El.  N.  S.  99 ;  Benham  v.  Vernon,  3  Cent.  Rep.  276. 


LICKBARROW   v.   MASON. 


IN  B.  R.  CAM.  SCACC.  ET  DOM.  PROC. 
[reported  2  t.  r.  63;   1  h.  bl.  357;  and  6  east,  21.] 

The  vendee  of  goods  may  hy  assignment  of  the  hills  of  lading  to  a 
bona  fide  transferee,  defeat  the  vendor  s  right  to  stop  them  in 
transitu,  in  case  of  the  vendee'' s  insolvency. 

The  co7isignor  may  stop  goods  in  transitu  before  they  get  into  the 
hands  of  the  consignee,  in  case  of  the  insolvency  of  the  consignee  ; 
but,  if  the  consignee  assign  the  bills  of  lading  to  a  third  person 
for  a  valuable  consideration,  the  right  of  the  consignor,  as 
against  such  assignee,  is  divested.  There  is  no  distinction 
between  a  bill  of  lading  indorsed  in  blank,  and  an  indorsement 
to  a  particular  person. 

Trover  for  a  cargo  of  corn.  Plea,  the  general  issue.  The 
plaintiffs,  at  the  trial  before  Buller,  J.,  at  the  Guildhall  sittings 
after  Easter  Term,  gave  in  evidence  that  Turing  and  Son,  mer- 
chants at  Middleburg,  in  the  province  of  Zealand,  on  the  22nd 
of  July,  1786,  shipped  the  goods  in  question  on  board  the 
Endeavour  for  Liverpool,  by  the  order  and  directions  and  on 
the  account  of  Freeman,  of  Rotterdam.  That  Holmes,  as 
master  of  the  ship,  signed  four  several  bills  of  lading  for  the 
goods  in  the  usual  form  unto  orders  or  assigns;  two  of  which 
were  indorsed  by  Turing  and  Son,  in  blank,  and  sent,  on  the 
22nd  of  July,  1786,  by  them  to  Freeman,  together  with  an  in- 
voice of  the  goods,  who  afterwards  received  them  ;  another  of 
the  bills  of  lading  was  retained  by  Turing  and  Son  ;  and  the 
remaining  one  was  kept  by  Holmes.  On  the  25th  of  July, 
1786,  Turing  and  Son  drew  four  several  bills  of  exchange  upon 
Freeman,  amounting  in  the  whole  to  477^.,  in  respect  of  the 
price  of  the  goods,  which  were  afterAvards  accepted  by  Free- 

1045 


104G  LICKBAKi:<)\V    V.    MASON. 

man.  On  the  25th  of  July,  178(5,  FreeuKin  sent  to  the  phiintiffs 
the  two  bills  of  lading,  together  with  the  invoiee  whicii  he  had 
received  from  Turing  and  Son,  in  the  same  state  in  whieh  lit; 
received  them,  in  order  that  the  goods  might  be  taken  posses- 
sion of  and  sold  by  them  on  P'reeman's  aecount;  and  on  the 
same  day  Freeman  drew  three  sets  of  bills  of  exchange  to  the 
amount  of  520?.  on  the  plaintiffs,  who  accepted  them,  and  have 
since  duly  paid  them.  The  plaintiff's  are  creditors  of  Freeman 
to  the  amount  of  542?.  On  the  15th  of  August,  1780,  and 
before  the  four  bills  of  exchange  drawn  by  Turing  and  Son  on 
Freeman  became  due.  Freeman  became  a  bankrupt :  those  bills 
were  regularly  protested,  and  Turing  and  Son  have  since  been 
obliged,  as  drawers,  to  take  them  up  and  pay  them.  The  price 
of  the  goods  so  shipped  by  Turing  and  Son  is  wholly  un[)aid. 
Turing  and  Son,  hearing  of  Freeman's  bankruptcy  on  the  21st 
of  August,  1786,  indorsed  the  bill  of  lading  so  retained  by  them 
to  tlie  defendants,  and  transmitted  it  to  them,  with  an  invoiee 
of  the  goods,  authorising  them  to  obtain  possession  of  the  goods 
on  account  of,  and  for  the  use  and  benefit  of,  Turing  and  Son, 
Avhich  the  defendants  received  on  the  28th  of  August,  1780. 
On  the  arrival  of  the  vessel  with  the  goods  at  Liverpool^  on  the 
28th  of  August,  1786,  the  defendants  applied  to  Holmes  for  the 
goods,  producing  the  l)ill  of  lading,  who  thereupon  delivered 
them,  and  the  defendants  took  possession  of  them  and  for  and 
on  account  of  Turino-  and  Son.  The  defendants  sold  the  tjoods 
on  account  of  Turing  and  Son,  the  proceeds  whereof  amounted 
to  557?.  Before  the  bringing  of  this  action  the  plaintiffs  de- 
manded the  goods  of  the  defendants,  and  tendered  to  them  the 
freight  and  charges ;  but  neither  the  plaintiffs  nor  Freeman 
have  paid  or  offered  to  pay  the  defendants  for  the  goods.  To 
this  evidence  the  defendants  demurred ;  and  the  plaintiffs 
joined  in  demurrer. 

This  was  argued  in  last  Trinity  Term  by  Erskine  in  support 
of  the  demurrer,  and  Matily  against  it;  and  again,  on  this  day, 
by  Shepherd,  in  support  of  the  demurrer,  and  Bearcroft  contra. 

Shepherd  (a),  after  observing  that,  as  the  defendants  were 
the  agents  of  Turing  and  Son,  the  general  question  was  to  be 
considered  as  between  the  consignor  and  the  indorsee  of  the 

(a)  As  the  second  argument,  with      the  subject,  the  former  argument  is 
the  judgment  of  the  court,  compre-       omitted, 
handed  everything  that  was  said  upon 


LICKBARROW    V.    MASON.  1047 

bill  of  lading,  contended,  first,  that,  as  between  the  vendor  and 
vendee  of  goods,  the  former  has  a  right  to  stop  the  goods  in 
transitu,  if  the  latter  become  insolvent  before  the  delivery  of 
them.  And,  secondly,  that  such  right  cannot  be  divested  by 
the  act  of  the  vendee's  indorsing  over  the  bill  of  lading  to  a 
third  person.  The  first  question  has  been  so  repeatedly  deter- 
mined, that  it  is  scarcely  necessary  to  cite  any  authorities  in 
support  of  it.  (The  plaintiff's  counsel  admitted  the  position.) 
Then,  in  order  to  determine  the  second,  it  is  material  to  con- 
sider the  nature  of  a  bill  of  lading.  A  bill  of  lading  cannot  by 
any  means  be  construed  into  a  contract  on  the  part  of  the  con- 
signor to  deliver  the  goods  mentioned  in  it  to  the  consignee ; 
it  is  only  an  undertaking  by  the  captain  to  deliver  the  goods  to 
the  order  of  the  shipper.  As  between  the  consignor  and  con- 
signee, it  is  a  bare  authority  to  the  captain  to  deliver,  and 
to  the  consignee  to  receive  them.  That  this  is  the  true  nature 
of  a  bill  of  lading  appears  from  all  the  writers  upon  mercantile 
law,  as  Molloy,  Postlethwayte,  and  Beawes.  If  it  be  any  sort 
of  instrument,  it  must  be  contended  to  amount  to  a  contract  by 
the  consignor  to  deliver  the  goods  to  the  consignee ;  but  no 
such  contract  arises  upon  it,  because  the  consignor  is  not  even 
a  party  to  it ;  and  no  action  could  be  framed  upon  it  against 
the  consignor.  Then,  if  it  be  only  a  bare  authority  to  the  one 
to  carry,  and  to  the  other  to  receive  the  goods,  the  consignee 
cannot  transfer  a  greater  right  than  he  has ;  neither  can  the 
riglit  of  the  consignor  be  divested  by  the  act  of  the  consignee. 
If  a  bill  of  lading  be  a  negotiable  instrument,  and  convey  an 
indefeasible  property  in  the  goods,  it  must  be  so  by  the  custom 
of  merchants ;  but  such  custom  is  not  to  be  found  in  any  of  the 
books  treating  upon  the  subject.  There  are  cases  which  estab- 
lish a  contrary  doctrine,  in  which  the  courts  have  held  that  the 
rights  of  the  assignees  are  th§  same  as  the  rights  of  the  original 
consignees.  It  cannot,  indeed  be  disputed  but  that,  as  between 
the  consignee  and  the  indorsee,  the  indorsement  of  a  bill  of  lading 
is  a  complete  transfer  of  the  property  which  the  consignee  has 
in  it ;  but  the  cases  go  no  further.  The  case  of  Snee  and  Pres- 
cot  (a)  is  precisely  similar  to  the  present.  There  the  bill  of 
lading  was  indorsed  in  blank,  and  afterwards  indorsed  over  by 
the  consignee  to  his  assignees :  those  assignees  were  some  of 

(a)  1  Atk.  245. 


1048  LICKBAliUOW    V.    MASON. 

the  defendants  in  that  suit,  and  they  stood  in  the  same  situa- 
tion with  the  present  phvintiffs.  In  that  case,  before  the  goods 
arrived,  and  after  the  indorsement  of  the  bill  of  lading  by  tlie 
consignee,  the  consignee  having  become  a  bankrupt,  the  goods 
were  stopped  in  transitu  by  order  of  the  consignor,  b}'  an 
indorsement  of  the  bill  of  lading,  wliich  was  left  with  him,  to 
another  of  the  defendants ;  there  Lord  JTardwicke  decreed  that 
the  indorsement  did  not  absolutely  transfer  the  property  in  the 
goods  in  the  event  of  the  consignee's  becoming  a  ])ankrupt 
before  the  arrival  of  the  goods ;  that  as  the  goods  liad  been 
stop})ed  in  transitu,  by  order  of  the  consignor,  he  had  a  right 
to  detain  them  till  the  sum  which  he  was  to  advance  to  the 
consignee  on  account  of  them  was  paid ;  and  that  the  surplus 
arising  from  the  produce  of  the  goods  should  be  paid  to  the 
indorsees  of  the  consignee.  Now,  uidess  Lord  Hardwieke  had 
been  of  opinion  that  the  indorsement  by  the  consignee  did 
not  absolutely  transfer  the  property  in  the  goods,  he  would 
have  decreed  that  the  indorsees  should  have  l)een  first  paid 
the  money  which  tliey  had  advanced  upon  the  credit  of  the  bill 
of  lading,  and  tlu-n  that  tlie  surplus  .should  have  been  paid 
to  the  consignor ;  ])ut  instead  of  that  he  gave  a  priority  to 
the  consignor.  This  doctrine  is  not  only  laid  down  in  a  court 
of  equity,  but  confirmed  in  a  court  of  law  in  the  case  of 
Saxnynac  and  Cvff  (^a'),  where  the  same  question  was  tried 
between  the  same  parties  as  at  present.  There  Salvetti,  a  mer- 
chant in  Italy,  consigned  a  quantity  of  skins  to  Lingham,  residing 
in  London,  and  sent  him  a  bill  of  lading  indorsed  in  blank.  Ling- 
ham,  the  consignee,  indorsed  it  to  Savignac  for  a  valuable  con- 
sideration, at  the  invoice  price,  showing  him  at  the  same  time 
the  letters  of  advice  and  the  bills  of  parcels.  The  consignee 
not  accepting  the  bills  of  exchange  which  the  consignor  had 
di'awn  upon  him  for  the  amount  of  the  goods,  the  consignor 
indorsed  the  bill  of  lading  remaining  in  his  hands  to  Cuff,  the 
defendant,  with  orders  to  seize  the  goods  Ijefore  tliey  got  into 
the  hands  of  the  consignee,  which  he  did ;  and  the  action  was 
brought  against  him  by  the  indorsee  of  the  consignee  to  recover 
the  value  of  the  goods.  Wallace,  Solicitor-General,  there  argued 
that  by  the  indorsement  of  the  bill  of  lading  the  property  was 
transferred.     But  Lord  Mansfield  was  of  opinion  that  the  con- 

(a)  Sittings  at  Guildhall,  cor.  Lord  Mansfield,  Tr.  1778. 


LICKBARKOW    V.    MASON.  1049 

signor  had  a  right  to  stop  the  goods  in  transitu  in  the  case  of 
the  insolvency  of  the  consignee,  and  that  the  plaintiff,  standing 
in  the  situation  with  the  original  consignee,  had  lost  his  lien. 
Lord  Mansfield  was  first  of  opinion,  that  there  was  a  distinction 
between  bills  of  lading  indorsed  in  Ijlank  and  otherwise  ;  but  he 
afterwards  abandoned  that  ground.  But  in  that  case,  as  the 
consignor  had  in  point  of  fact  received  150/.  from  the  consignee, 
there  was  a  verdict  for  the  plaintiff  for  that  sum.  So  that  the 
result  of  the  verdict  was,  that  the  consignor  was  entitled,  under 
those  circumstances,  to  retain  all  the  goods  consigned,  deduct- 
ing only  the  sum  which  he  had  actually  received  for  part. 
Both  these  cases  establish  the  construction  of  the  bill  of  lading 
contended  for :  and  it  is  to  be  observed  that  the  verdict  in  the 
latter  was  acquiesced  in.  And  indeed  to  construe  it  otherwise 
would  be  opening  a  great  door  to  fraud,  and  would  be  placing 
the  indorsee  of  a  consignee  of  a  bill  of  lading  in  a  better  situa- 
tion than  the  consignee  himself  in  case  of  his  insolvency. 
Suppose  the  consignee  assign  over  to  a  third  person,  who  be- 
comes insolvent  before  the  delivery  of  the  goods,  such  assignee 
would  then,  notwithstanding  his  insolvency,  have  a  right  to 
get  the  goods  into  his  possession  ;  for  if  the  act  of  indorsement 
absolutely  divests  the  property  out  of  the  consignor,  he  can 
never  afterwards  get  possession  of  the  goods  again ;  or  else 
this  consequence  would  follow,  that  vendor  would  have  a 
right  to  seize  the  goods  in  transitu  till  the  indorsement,  by 
which  his  right  would  be  divested,  and  that  by  the  act  of  in- 
solvency of  the  indorsee  it  would  be  revested.  This  has  never 
been  considered  to  be  the  same  sort  of  instrument  as  a  bill  of 
exchange  ;  they  are  not  assimilated  to  each  other  in  any  treatise 
upon  the  subject :  nay,  bills  of  exchange  are  said  to  be  sid  juris. 
In  their  nature  they  are  different :  a  bill  of  exchange  always 
imports  to  be  for  value  received ;  but  the  very  reverse  is  the 
case  with  a  bill  of  lading.  For  in  few,  if  any,  instances,  is  the 
consignor  paid  for  liis  goods  till  delivery ;  and  bills  of  exchange 
were  first  invented  for  tlie  purpose  of  remitting  money  from 
one  country  to  another,  which  is  not  the  case  with  bills  of 
lading.  As  to  the  case  of  Wright  and  Campbell  (a),  which  may 
be  cited  on  the  other  side,  it  will  perhaps  be  said  that  the 
court  awarded  a  new  trial  only  on  the  ground  of  fraud ;  but 

("«)  4  Burr.  2046. 


1050  LICKIJAUUOW    V.    MASON. 

non  constat  that,  if  tliere  had  been  no  suspicion  of  fraud,  a  new 
trial  would  not  have  been  granted.  So  that  the  law  cannot  be 
considered  to  have  been  decided  in  that  case ;  for  when  a  new 
trial  is  moved  for,  if  the  facts  warrant  it,  the  court  awards  a 
new  trial  without  going  into  the  law  arising  upon  those  facts. 
In  such  cases  the  law  is  still  left  open  to  be  considered  on  a 
different  linding;  since  it  would  l)e  nugatory  to  determine  the 
point  of  law,  which  may  not  perlia[)s  be  applicable  to  the  facts 
when  found.  At  tlie  most,  there  is  only  an  inference  of  law  to 
be  drawn  from  that  case,  which  is  not  sufficient  to  overturn 
established  principles.  Besides,  this  case  is  distinguishable 
from  that;  for  there  it  appeared  that  the  consignee  was  the 
factor  of  the  consignor,  and  as  such  might  bind  his  principal 
by  a  sale. 

Bearcroft^  contra.  —  The  question  is  whether  the  bond  fide 
indorsement  for  a  valual)le  consideration  of  a  bill  of  lading  to  a 
third  person  is  not  an  absolute  transfer  of  the  whole  property  ? 
This  question  is  of  infinite  importance  to  the  mercantile  world, 
and  has  never  yet  been  put  in  a  way  to  receive  a  solemn  de- 
cision in  a  court  of  law.  For  at  most  it  has  only  been  con- 
sidered in  a  court  of  equity  upon  equitable  principles,  or  at 
Nisi  Prius  in  a  case  the  correct  state  of  which  is  to  be  doubted. 
The  form  of  the  bill  of  lading  is  material  to  be  attended  to  in 
determining  this  case  ;  it  is,  that  the  goods  are  to  be  delivered 
"  to  order  or  to  assigns  "  ;  therefore,  on  the  very  face  of  the  in- 
strument, there  is  an  authority  to  the  captain  to  deliver  them 
to  the  consignee  or  to  his  assigns;  and  the  question  here  is, 
who  are  his  assigns  ?  As  between  the  consignor  and  consignee 
the  rule  contended  for  is  not  now  to  be  disputed,  since  it  has 
been  confirmed  by  so  many  authorities ;  though,  perhaps,  it 
were  much  to  be  wished  that  it  had  never  been  established: 
but  there  will  be  danger  in  extending  it  farther.  With  respect 
to  the  case  of  Snee  and  Prescot,  when  it  is  considered  who 
were  the  parties  to  the  cause,  in  what  court,  and  upon  what 
principles  it  was  decided,  it  will  not  be  found  sufficient  to  de- 
termine the  present  case.  The  actors,  the  plaintiffs,  were  not 
the  innocent  purchasers  of  a  bill  of  lading ;  they  were  the 
assignees  of  a  bankrupt,  and  prayed  by  their  bill  to  get  posses- 
sion of  the  goods,  notwithstanding  they  had  not  paid  for  them. 
Bat  this  is  a  case  between  the  consignor  and  third  persons  who 
have  paid  a  valuable  consideration  for  the  goods ;  that  case  was 


LICKBARROW    V.    MASON.  lOol 

likewise  in  a  court  of  equity,  where  the  leading  principle  is, 
that  he  ivho  seeks  equity^  must  first  do  tvhat  is  equitable  ;  there 
too  the  decision  was  founded  in  some  measure,  on  the  custom 
of  the  Leghorn  trade,  and  the  construction  of  the  statute  re- 
lating to  mutual  credit ;  so  that  there  Avere  united  a  number 
of  circumstances  which,  taken  altogether,  induced  Lord  Hard- 
tvieke''s  decree,  and  wliich  do  not  exist  in  the  present  case.  And 
it  is  to  be  remarked  that  Lord  Hardwidze,  thinking  it  a  harsh 
demand  against  the  consignors,  said,  "he  would  lay  hold  on 
anything  to  save  the  advantage"  which  the  consignors  had,  by 
regaining  the  possession  of  the  goods  before  they  got  into  the 
hands  of  the  indorsees  of  the  consignee.  Then,  as  to  the  case 
of  Savignac  v.  CuW^  that  had  not  even  the  authority  of  a  Nisi 
Prius  determination.  Lord  Mansfield  gave  no  opinion  upon 
the  question ;  for  though  he  said  there  was  no  doubt  but  that, 
as  between  the  vendor  and  the  vendee,  the  former  might  seize 
the  goods  in  trarisitu,  if  the  latter  became  insolvent  before  they 
were  delivered,  yet  there  he  stopped :  so  that  the  inclination  of 
his  mind  may  be  presumed  to  have  been  against  extending  the 
rule.  And,  after  all,  the  whole  circumstance  of  that  case  were 
left  to  the  consideration  of  a  jur}'.  Since  Lord  Raymond's 
time  («)  it  has  been  taken  to  be  clear  and  established  law  that 
a  general  indorsement  of  a  bill  of  lading  does  transfer  the 
property.  And  HoU.,  C.  J.,  then  said,  "that  a  consignee  of  a 
bill  of  lading  has  such  a  property  that  he  may  assign  it  over." 
It  has  now  been  contended  that  the  right  of  the  consignor 
ought  not  to  be  divested  by  the  act  of  the  consignee :  but  it  is 
not  by  the  act  of  the  consignee  alone ;  for  the  consignor  has 
by  his  own  act  enabled  the  consignee  to  defeat  his  right.  If 
he  had  been  desirous  of  restraining  the  negotiability  of  the  bill 
of  lading,  instead  of  making  a  general  indorsement,  he  should 
have  made  a  special  indorsement  to  his  own  use.  And  then 
the  holder  of  the  bill  of  lading  would  have  been  considered 
as  a  trustee  for  the  consignor.  The  custom  of  merchants  has 
established  that  the  delivery  of  a  bill  of  lading  transfers  the 
Avhole  property,  Evans  v.  Marflett,  1  Lord  Raym.  271 ;  Wright 
V.  Campbell,  -l  Bvirr.  204(3;  and  CaJdiveUx.  Ball,  ante,  1  vol.  [T. 
R.]  205  (5).  Then  it  has  been  said,  that  a  bill  of  lading  is  not 
transferable  like  a  bill  of  exchange :    but  the  custom  of  mer- 

(a)  Lord  Kayiii.  271.  {b)  Vide  Hihhcrt  v.  Carter,  1  T.  K.  745. 


1052  LICKBARROW    V.    MASON. 

chants  has  made  that  transferable  wliich  in  its  nature  perhaps 
is  not  so;  and  the  cases  alcove  referred  to  decide  that  point. 
Thoiigli  a  new  trial  in  the  case  of  Wn'(/ht  v.  Campbell  was 
granted  on  a  suspicion  of  fraud,  and  the  law  was  not  expressly- 
adjudged  ;  yet  from  what  was  said  by  the  Court  it  nuiy  be  col- 
lected that  no  new  trial  would  have  been  awarded,  if  no  fraud 
had  existed;  and  the  opinion  of  Lord  Mansfield,  as  far  as  it 
goes,  is  expressly  in  point.  But,  above  all  arguments,  public 
convenience  ought  to  have  a  considerable  influence  in  the  de- 
cision of  this  question.  By  the  constant  course  and  the  uni- 
versal consent  and  opinion  of  merchants,  bills  of  lading  are 
negotiable  ;  it  is  highly  convenient  to  trade  that  they  should 
be  so;  and  if  this  case  should  be  determined  against  the  plain- 
tiffs, one  of  the  })riiu'ipal  currents  of  trade  will  be  stopped: 
besides,  it  will  be  a  hardship  on  an  innocent  vendee. 

Shepherd,  in  reply.  —  Though  there  may  be  some  hardship 
on  the  vendee  if  he  be  to  suffer,  yet  the  hardship  would  be 
equally  great  on  the  vendor,  who  would  by  a  decision  against 
him  be  compelled  to  deliver  up  the  possession  of  his  goods, 
though  at  the  time  of  the  delivery  he  knew  that  he  should  not 
receive  any  consideration  for  them.  But  convenience  requires 
that,  if  one  of  these  two  innocent  persons  must  suffer,  the  loss 
should  be  sustained  by  the  consignee.  For  when  a  vendor 
consigns  his  goods,  he  knows  that  by  the  general  law  he  has  a 
right  to  stop  them  in  transitu,  if  the  consignee  become  insolvent 
before  delivery.  But  when  an  indorsee  takes  an  assignment 
of  a  bill  of  lading,  he  takes  it  with  the  knowledge  of,  and  sub- 
ject to,  that  general  right  which  the  vendor  has.  Though  the 
case  of  jSnee  v.  Prescot  was  determined  in  a  court  of  equity,  yet 
that  court  could  not  alter  the  effect  and  nature  of  a  legal 
instrument ;  which  it  must  have  done  in  that  case  if  the  right 
of  an  indorsee  is  to  be  preferred  to  the  consignor.  Suppose  A. 
sends  a  bill  of  lading  of  goods  to  B.,  and  the  goods  themselves 
are  in  fact  never  sent  out  of  his  possession ;  if  the  indorsement 
of  the  bill  of  lading  can  be  said  to  transfer  the  property,  the 
indorsee  would  have  a  right  to  recover  the  goods  as  against  the 
original  consignor,  who  had  never  parted  with  the  possession  of 
them.  So  that  the  rule  contended  for  would  not  only  divest 
the  right  which  the  consignor  has  to  seize  the  goods  in  transitu, 
but  would  also  compel  him  to  part  with  his  goods,  without 
receiving  any  consideration,  although  he  had  never  relinquished 


LiCKBARRow  V.  :mason.  1053 

his  iDOssession.  The  meaning  of  the  dit-tum  of  Lord  Rolt,  in 
Uvans  V.  Martlett,  is  only  that  the  consignee  may  assign  over 
that  right  which  he  has.  The  case  of  Caldtvell  v.  Ball  was 
merely  a  question  between  two  solvent  indorsees,  both  of  Avhom 
had  an  equitable  title  ;  and  that  case  only  decided  that  he  who 
first  got  possession  of  one  of  the  bills  of  lading  was  entitled  to 
the  goods ;  and  there,  too,  the  Court  determined  in  favour  of 
him  who  had  the  possession. 

Ashurst,  J.  —  As  this  was  a  mercantile  question  of  ver}^ 
great  importance  to  the  public,  and  had  never  received  a 
solemn  decision  in  a  court  of  law,  we  were  for  that  reason 
desirous  of  having  the  matter  argued  a  second  time,  rather  than 
on  account  of  any  great  doubts  which  we  entertained  on  the 
first  argument.  We  may  lay  it  down  as  a  broad  general  prin- 
ciple, that  ivTierever  one  of  two  innocent  persons  must  suffer  by 
the  acts  of  a  third,  he  ivho  has  enabled  such  third  jyersoii  to  occa- 
sion the  loss  must  sustain  it  (ci).  If  that  be  so,  it  will  be  a 
strong  and  leading  clue  to  the  decision  of  the  present  case.  It 
has  been  argued,  that  it  would  be  very  hard  on  a  consignor, 
who  had  received  no  consideration  for  liis  goods,  if  he  should 
be  obliged  to  deliver  them  up  in  case  of  the  insolvency  of  the 
consignee,  and  come  in  as  a  creditor  under  his  commission  for 
what  he  can  get.  That  is  certainly  true :  but  it  is  a  hardship 
which  he  brings  upon  himself.  When  a  man  sells  goods,  he 
sells  them  on  the  credit  of  the  buyer  :  if  he  delivers  the  goods, 
the  property  is  altered,  and  he  cannot  recover  them  back 
again,  though  the  vendee  immediately  become  a  bankrupt. 
But  where  the  delivery  is  to  be  at  a  distant  place,  as  between 
the  vendor  and  vendee,  the  contract  is  ambulatory  till  delivery ; 
and  therefore,  in  case  of  the  insolvency  of  the  vendee  in  the 
meantime,  the  vendor  may  stop  the  goods  in  transitu.  But,  as 
between  the  vendor  and  third  persons,  the  delivery  of  a  bill 
of  lading  is  a  delivery  of  the  goods  themselves ;  if  not,  it  would 
enable  the  consignee  to  make  the  bill  of  lading  an  instrument 
of  fraud.  The  assignee  of  a  bill  of  lading  trusts  to  the  indorse- 
ment ;  the  instrument  is  in  its  nature  transferable ;  in  this 
respect,  therefore,  this  is  similar  to  the  case  of  a  bill  of  ex- 

(a)  [See  Swan  v.  The  British  Aus-  N.  881;   Odell  v.  Atherton,  7  H.  &  N. 

tralasian  Co.,  7  H.  &  N.  603;  31  L.  J.  786;    Collingwood  v.  Berkeley,  15  C. 

Exch.   425,  S.  C. ;    affirmed  in  error,  B.  N.  S.  145;  Babcock  v.  Lawson,  4 

32  L.  J.  280;  Foster  v.  Green,  7  H.  &  Q.  B.  D.  at  p.  400.] 


1054  LICKBAKROW    V.    MASON. 

change.  If  the  consignor  liad  intended  to  restrain  the  negotia- 
Ijility  of  it,  he  sliould  hiive  confined  tlie  delivery  of  the  goods  to 
the  vendee  only:  but  he  has  made  it  an  indorsahle  instrument. 
So  it  is  like  a  bill  of  exchange  ;  in  which  case,  as  l)etween  the 
drawer  and  the  payee,  the  consideiation  may  be  gone  into,  yet 
it  cannot  between  the  drawer  and  the  indorsee;  and  the  reason 
is,  because  it  would  be  enabling  either  of  the  original  parties  to 
assist  in  a  fraud.  The  rule  is  founded  purely  on  princi})les  of 
law  and  not  on  the  custom  of  merchants.  The  custom  of  mer- 
chants only  establishes  that  such  an  instrument  may  be  in- 
dorsed; but  the  effect  of  that  indorsement  is  a  (piestion  of  law, 
which  is,  that  as  between  the  original  parties  the  consideration 
may  be  inquired  into  ;  though  when  third  persons  are  con- 
cerned, it  cannot.  This  is  also  the  case  with  respect  to  a  bill 
of  lading.  Though  the  bill  of  lading  in  this  case  was  at  first 
indorsed  in  blank,  it  is  precisely  the  same  as  if  it  had  been 
originally  indorsed  to  this  person  ;  for  when  it  was  tilled  up 
with  his  name,  it  was  the  same  as  if  made  to  him  only.  Then 
what  was  said  by  Lord  Marufiehl  in  the  case  of  Wrii/ht  v. 
CamphcU  goes  the  full  length  of  this  doctrine :  "  If  the  goods 
be  bond  fide  sold  by  the  factor  at  sea  (as  they  may  be  where  no 
other  delivery  can  be  given),  it  will  be  good  notwithstanding 
the  statute  21  Jac.  1,  c.  19.  The  vendee  shall  hold  them  by 
virtue  of  the  bill  of  sale,  though  no  actual  possession  is  de- 
livered: and  the  owner  can  never  dispute  with  the  vendee, 
because  the  goods  were  sold  bond  fide,  and  by  the  owner's 
own  authority."  Now  in  this  case  the  goods  were  transferred 
by  the  authority  of  the  vendor,  because  he  gave  the  vendee  a 
power  to  transfer  them  ;  and  being  sold  by  his  authority,  the 
property  is  altered.  And  I  am  of  opinion  that  this  right  of  the 
assignee  could  not  be  divested  by  any  subsequent  circum- 
stances. 

Buller,  J.  —  This  case  has  been  very  fully,  very  elaborately, 
and  very  ably  argued,  both  now  and  in  the  last  term ;  and 
though  the  former  arguments  on  the  part  of  the  defendant  did 
not  convince  my  mind,  yet  they  staggered  me  so  much  that  I 
wished  to  hear  a  second  argument.  Before  I  consider  the 
effect  of  the  several  authorities  which  have  been  cited,  I  w411 
take  notice  of  one  circumstance  in  this  case  which  is  peculiar 
to  it ;  not  for  the  purpose  of  founding  my  judgment  upon  it, 
but  because  I  would  not  have  it  supposed  in  an}-  future  case 


LICKBAEROW    V.    MASON.  '  1055 

that  it  passed  unnoticed,  or  that  it  may  not  hereafter  have  any 
effect  Avhich  it  ought  to  have.  In  this  case  it  is  stated  that 
there  were  four  bills  of  lading :  it  appears  by  the  books  treating 
on  this  subject,  that  according  to  the  common  course  of  mer- 
chants there  are  only  three ;  one  of  which  is  delivered  to  the 
captain  of  the  vessel,  another  is  transmitted  to  the  consignee, 
and  the  third  is  retained  by  the  consignor  himself,  as  a  testi- 
mony against  the  captain  in  case  of  any  loose  dealing.  Now,  if 
it  be  at  present  the  established  course  among  merchants  to  have 
only  three  bills  of  lading,  the  circumstance  of  there  being  a 
fourth  in  this  case  might,  if  the  case  had  not  been  taken  out  of 
the  hands  of  the  jury  by  the  demurrer,  have  been  proper  for 
their  consideration.  I  am  aware  that  that  circumstance  appears 
in  the  bill,  on  which  is  written,  "in  witness  the  master  hath 
affirmed  to  four  bills  of  lading,  all  of  this  tenor  and  date."  But 
we  all  know  that  it  is  not  the  practice  either  of  persons  in  trade 
or  in  the  profession  to  examine  very  minutely  the  words  of  an 
instrument  which  is  partly  printed  and  partly  written  ;  and  if 
we  only  look  at  the  substance  of  such  an  instrument,  this  may 
be  the  means  of  enabling  the  consignee  to  commit  a  fraud  on  an 
innocent  person.  Then  how  stood  the  consignee  in  this  case? 
He  had  two  of  the  bills  of  lading,  and  the  captain  must  have  a 
third  ;  so  that  the  assignee  could  not  imagine  that  the  consignor 
had  it  in  his  power  to  order  a  delivery  to  any  other  person. 
But  I  mean  to  lay  this  circumstance  entirely  out  of  my  consid- 
eration in  the  present  case,  which  I  think  turns  wholly  on  the 
general  question  :  and  I  make  the  question  even  more  general 
than  was  made  at  the  bar,  namely,  whether  a  hill  of  lading  is  hy 
law  a  transfer  of  the  'property  (a).  This  question  has  been 
argued  upon  authorities  :  and  before  1  take  notice  of  any  par- 
ticular objections  which  have  been  made,  I  will  consider  those 
authorities.  The  principal  one  relied  on  by  the  defendants  is 
that  of  Snee  v.  Prescot.  Now,  sitting  in  a  court  of  law,  I  should 
think  it  quite  sufficient  to  say,  that  that  was  a  determination  in 
a  court  of  equity,  and  founded  on  equitable  principles.  The 
leading  maxim  in  that  court  is,  that  he  who  seeks  equity  must 
first  do  equity.  I  am  not  disposed  to  find  fault  with  that  deter- 
mination as  a  case  in  equity  ;  but  it  is  not  sufficient  to  decide 
such  a  question  as  that  now  before  us.     Lord  Hardwieke  has, 

(rt)   [See  on  this  question  Sewell  v.  Bicrdick,  10  App.  Ca.] 


1056  LICKBAUKOW     V.    MASON, 

with  his  usual  caution,  enumerated  every  circumstance  wliich 
existed  in  the  case:  and,  indeed,  he  has  been  so  particular,  that 
if  the  printed  note  of  it  be  accurate,  which  I  doubt,  it  is  not  an 
authority  for  any  case  which  is  not  precisely  similar  to  it.  'I'lie 
only  point  of  law  in  that  case  is  upon  the  forms  of  the  bills  of 
lading ;  and  Lord  Hardwieke  thought  there  was  a  distinction 
between  bills  of  lading  indorsed  in  blank,  and  those  indorsed  to 
parti(!ular  persons  :  but  it  was  i)roperly  admitted  at  the  bar  tliat 
that  distinction  cannot  now  be  supported.  Thus  the  matter 
stood  till  within  these  thirty  years  ;  since  that  time  the  com- 
mercial law  of  tliis  country  has  taken  a  very  different  turn  from 
what  it  thd  before.  We  find  in  iS'nce  v.  Prcscot  that  Lord 
Hardwieke  himself  was  proceeding  with  great  caution,  not 
establishing  any  general  principle,  but  decreeing  on  all  the 
circumstances  of  the  case  put  together.  Before  that  periinl  we 
find  that  in  courts  of  law  all  the  evidence  in  mercantile  cases 
were  thrown  together ;  they  were  left  generally  to  a  jury,  and 
they  produced  no  established  principle.  From  that  time  Ave  all 
know  the  great  study  has  been  to  find  some  certain  general 
princi^iles,  which  shall  be  known  to  all  mankind,  not  only  to 
rule  the  particular  case  then  under  consideration,  but  to  serve 
as  a  guide  for  the  future.  j\Iost  of  us  have  heard  these  princi- 
ples stated,  reasoned  upon,  eidarged,  and  explained,  till  we 
have  been  lost  in  admiration  at  the  strength  and  stretch  of  the 
human  understanding.  And  I  shcjuld  be  very  sorry  to  find 
myself  under  a  necessity  of  differing  from  any  case  on  this 
subject  which  has  been  decided  by  Lord  Mdnxfield,  who  may 
be  truly  said  to  be  the  founder  of  the  commercial  law  of  this 
country.  I  hope  to  show,  before  I  have  finished  my  judgment, 
that  there  has  been  no  inconsistency  in  any  of  his  determina- 
tions :  but  if  there  had,  if  I  could  not  reconcile  an  opinion 
which  he  had  delivered  at  Nisi  Priiis  with  his  judgment  in  this 
court,  I  should  not  hesitate  to  adopt  the  latter  in  preference  to 
the  former ;  and  it  is  but  just  to  say,  that  no  judge  ever  sat 
here  more  ready  than  he  was  to  correct  an  opinion  suddenly 
given  at  JVisi  Prius.  First,  as  to  the  case  of  Wright  v.  Camp- 
hell,  that  was  a  very  solemn  opinion  delivered  in  tliis  court.  In 
my  opinion  that  is  one  of  the  best  cases  that  we  have  in  the  law 
on  mercantile  subjects.  There  are  four  points  in  that  case, 
which  Lord  Mansfield  has  stated  so  extremely  clear  that  they 
cannot  be  mistaken :  The  first  is,  what  is  the  case  as  between 


LICKBARROW    V.    MASON.  1057 

the  owner  of  the  goods  and  the  factor ;  the  second,  as  between 
the    consignor   and   the    assignee    of   the   factor   with   notice; 
thirdly,   as   between    the    same    parties    without   notice;    and, 
fourthly,  as  to  the  nature  of  a  bill  of  -sale  of  goods  at  sea  in 
general.     It  is  to  be    recollected  that  the   case   of    Wri<)ht  v. 
Camphell  was  decided  by  the  judge  at  Nisi  Prius  upon  the 
ground  that  the  bill  of  lading  transferred  the  whole  property  at 
law:  and  when  it  came  before  this  court  on  a  motion  for  a  new 
trial.  Lord  Mansfield  confirmed  that  opinion  :  but  a  new  trial 
was  granted  on  a  suspicion   of  fraud;    therefore  it  is  fair  to 
infer,  that  if  there  had  been  no  fraud,  the  delivery  of  the  bill  of 
lading  would  have  been  hnal.     If  there  be  fraud,  it  is  the  same 
as  if  the  question  were  tried  between  the  consignor  and  the 
original  consignee.     According  to  a  note  of  Wright  v.  Camp- 
hell,  which  I  took  in  court.  Lord  Mansfield  said,  that  since  the 
case  in  Lord  Raymond,  it  had  always  been  held  that  the  de- 
livery of  a  bill  of  lading  transferred  the  property  at  law  ;  if  so, 
every  exception  to  that  rule   arises  from  equitable  considera- 
tions which  have   been  adopted  in  courts  of  law.     The  next 
case  is  that  of  Savignac  v.  Cuff,  the  note  of  which  is  too  loose 
to  be  depended  upon :  but  there  is  a  circumstance  in  that  case 
which  might  afford  ample  ground  for  the  decision ;  for  I  can- 
not suppose    that  Lord  Mansfield  had  forgotten  the  doctrine 
which  he  laid  down  in  this  court  in  Wright  v.  Camphell.     There 
he  observed  very  minutely  on  what  did  not  appear  at  the  trial, 
that  no  letters  were  produced,  and  that  no  price  was  fixed  for 
the  goods :  but  in  Savigyiac  v.  Cuff,  the  plaintiff  had  not  only 
the  bills  of  lading  and  the  invoice,  but  he  had  also  the  letters 
of  advice,  from  which  the  real  transaction  must  have  appeared ; 
and  if  it  appeared  to  him  that  Selvetti  had  not  been  paid  for 
the  goods,  that  might  have  been  a  ground  for  the  determination. 
The  case  of  Hmiter  v.  Beal  (a)  does  not  come  up  to  the  point 
now  in  dispute ;  it  only  determines  what  is   admitted,  that,  as 
between  the  vendor  and  vendee,  the  property  is  not  altered  till 
delivery  of  the  goods.     With  respect  to  the  case   of  Stokes  v. 
La  Riviere  (h),  perhaps  there  may  be  some  doubt  about  the 
facts    of    it:    however,    it   was    determined   upon    a   different 
ground ;  for  the  goods  were  in  the  hands  of  an  agent  for  both 
parties  :    that  case,  therefore,  does   not  impeach  the  doctrine 

(a)  Sittings  after  Trin.  1785,  at  Guild-       (h)  Hil.  25  G.  3. 
hall,  before  Lord  Mansfield,  C.  J. 


1058  LICKBAIIROW    V.    MASON. 

laid  down  in  Wright  v.  Campbell.  It  has  been  argued  at  the 
bar,  that  it  is  impossible  for  the  holder  of  a  bill  of  lading  to 
bring  an  action  on  it  against  the  consignor  ;  perhaps  that  argu- 
'ment  is  well  founded :  no  special  action  on  the  bill  of  lading 
has  ever  been  brought  (a) ;  for  if  the  bill  of  lading  transfer  the 
property,  an  action  of  trover  against  the  captain  for  non-deliv- 
ery, or  against  any  other  person  who  seizes  the  goods,  is  a 
proper  form  of  action.  If  an  action  be  brought  by  a  vendor 
against  a  vendee,  between  Avhom  a  bill  of  lading  has  passed,  the 
proper  action  is  for  goods  sold  and  delivered.  Then  it  has 
been  said  that  no  case  has  yet  decided  that  a  bill  of  lading  does 
transfer  the  property :  but  in  answer  to  that  it  is  to  be  observed, 
that  all  the  cases  upon  the  subject  —  Evans  v.  3Iartlett,  Wright 
V.  Campbell,  and  Caldwell  v.  Ball,  and  the  universal  under- 
standing of  mankind  —  preclude  that  question.  The  cases 
between  the  consignor  and  consignee  have  been  founded 
merely  on  principles  of  equity,  and  have  followed  up  the 
principle  of  S/iee  v.  Prescot  ;  for  if  a  man  has  bought  goods  and 
has  not  paid  for  them,  and  cannot  pay  for  them,  it  is  not  equi- 
table that  he  sliould  prevent  the  consignor  from  getting  his 
goods  back  again,  if  he  can  do  it  before  they  are  in  fact  de- 
livered. There  is  no  weight  in  the  argument  of  hardship  on 
the  vendor :  at  any  rate  that  is  a  bad  argument  in  a  court  of 
law ;  but  in  fact  there  is  no  hardship  on  him,  because  he  has 
parted  with  the  legal  title  to  the  consignee.  An  argument  was 
used  with  respect  to  the  difficulty  of  determining  at  what  time 
a  bill  of  lading  shall  be  said  to  transfer  the  property,  especially 
in  a  case  where  the  goods  were  never  sent  out  of  the  merchant's 
warehouse  at  all:  the  answer  is,  that  under  those  circumstances 
a  bill  of  lading  could  not  possibly  exist,  if  the  transaction 
were  a  fair  one ;  for  a  bill  of  lading  is  an  acknowledgment  by 
the  captain,  of  having  received  the  goods  on  board  his  ship : 
therefore  it  would  be  a  fraud  in  the  captain  to  sign  such  a  bill 
of  lading,  if  he  had  not  received  goods  on  board ;  and  the  con- 
signee would  be  entitled  to  his  action  against  the  captain  for 
the  fraud.  As  the  plaintiff  in  this  case  has  paid  a  valuable  con- 
sideration for  the  goods,  and  there  is  no  colour  for  imputing 
fraud  or  notice  to  him,  I  am  of  opinion  that  he  is  entitled  to 
the  judgment  of  the  Court. 

(a)  [See  now  as  to  the  right  to  sue  by  statute,  post,  in  noiS.] 


LlCKBAKIiOW    V.    MASON.  10')9 

Grose,  J.  —  After  this  case  had  been  so  ehiboratel}-  spoken  to 
by  my  brethren,  it  is  not  necessary  for  me  to  enter  fully  into  tlie 
question,  as  I  am  of  the  same  opinion  with  them.  But  I  think 
that  the  importance  of  the  subject  requires  me  to  state  the  gen- 
eral grounds  of  my  opinion.  I  conceive  this  to  be  a  mere  ques- 
tion of  law,  whether,  as  between  the  vendor  and  the  assignee  of 
the  vendee,  the  bill  of  lading  transfers  the  property.  I  think 
that  it  does.  With  respect  to  the  question  as  between  the  orig- 
inal consignor  and  consignee,  it  is  now  the  clear,  known,  and 
established  law  that  the  consignor  may  seize  the  goods  m  tran- 
situ, if  the  consignee  become  insolvent  before  the  delivery  of 
them.  But  that  was  not  always  the  law.  The  first  case  of  that 
sort  was  that  of  Wiseman  v.  Vandeputt  in  Chancery  («),  when, 
on  the  first  hearing,  the  Chancellor  ordered  an  action  of  trover 
to  be  brought,  to  try  whether  the  consignment  vested  the  prop- 
erty in  the  consignees ;  and  it  was  then  determined  in  a  court 
of  law  that  it  did ;  but  the  Court  of  Equity  thought  it  right  to 
interpose  and  give  relief:  and  since  that  time  it  has  always 
been  considered,  as  between  the  original  parties,  that  the  con- 
signor may  seize  the  goods  before  they  are  actually  delivered  to 
the  consignee  in  case  of  the  insolvency  of  the  consignee.  But 
this  is  a  question  between  the  consignor  and  the  assignee  of  the 
consignee,  who  do  not  stand  in  the  same  situation  as  the  orig- 
inal parties.  A  bill  of  lading  carries  credit  with  it ;  the  con- 
signor by  his  indorsement  gives  credit  to  the  bill  of  lading,  and 
on  the  faith  of  that,  money  is  advanced.  The  first  case  that  I 
find  where  an  attempt  was  made  to  introduce  the  same  law  be- 
tween the  consignor  and  the  indorsee  of  the  consignee,  is  that 
of  Snee  v.  Prescot ;  but  as  my  brother  Buller  has  already  made 
so  many  observations  on  that  case,  it  would  be  but  repetition  in 
me  to  go  over  them  again,  as  I  entirely  agree  with  him  in  them 
all,  as  well  as  in  those  which  he  made  on  the  other  cases. 
Therefore  I  am  of  opinion  that  there  should  be  judgment  for 
the  plaintiff. 

Judgment  for  the  plaintiff  (J). 


(a)  2  Vern.  203.  the  record  being  afterwards  removed 

(6)  This  judgment  was  afterwards  into  tlie  House  of  Lords,  a  venire  de 

reversed  in  tlie  Exchequer  Chamber,  novo    was    awarded    in    June,    1793. 

vide  Mason  V.  LicJcbarrow,  infra.    But  Vide  post,  p.  7di. 


1000  LlCKBAltllOW    V.    MASUN. 

MASON  AND   OTHERS  V.   LICKBARROW  AND  OTHERS,  IN  THE   EX- 
CHEQUER CHAMBER,  IN  ERROR. 

The  defe7idants  hi  the  or'ujinal  action,  having  brought  a  writ  of 
error  in  the  Exchequer  Chamber,  after  two  arguments,  the  follow- 
ijig  judgment  of  that  court  was  then  delivered  by  (a) 

Lord  Loughborough.  —  This  case  comes  before  the  court  on  a 
demurrer  to  the  evidence ;  the  general  question,  therefore,  is, 
whether  the  facts  offered  in  evidence  by  the  pLaintifTs  in  the 
action  are  sulhcient  to  warrant  a  verdict  in  their  favour? 

The  facts  are  shortly  these  :  On  the  2:ind  of  July,  1786,  Messrs. 
Turing  sliipped  on  board  the  ship  Endeavour,  of  whicli  Holmes 
was  master,  at  Middleburg,  to  be  carried  to  Liverpool,  a  cargo 
of  goods  by  the  order  and  directions  and  on  tlie  account  of  Free- 
man, of  Rotterdam,  for  which,  of  the  same  date,  bills  of  lading 
were  signed  on  behalf  of  the  master,  to  deliver  the  goods  at 
Liverpool,  specified  to  be  shipped  by  Turings  to  order  or  to 
assigns.  On  the  same  22nd  of  July,  two  of  the  bills  of  lading, 
indorsed  in  blank  by  Turings,  were  transmitted  by  them,  to- 
gether with  an  invoice  of  the  goods,  to  Freeman  at  Rotterdam, 
and  were  duly  received  by  him,  that  is,  in  the  course  of  post, 
one  of  the  bills  being  retained  by  Turings.  I  take  no  notice  of 
there  being  four  bills  of  lading,  because  on  that  circumstance 
I  lay  no  stress.  On  the  25th  of  July,  bills  of  exchange  for  a 
sum  of  477/.,  being  the  price  of  the  goods,  were  drawn  by 
Turings,  and  accepted  by  Freeman  at  Rotterdam ;  and  Freeman 
on  the  same  day  transmitted  to  the  plaintiffs  in  the  action,  mer- 
chants at  Liverpool,  the  bills  of  lading  and  invoice,  which  he 
had  received  from  Turings,  in  order  that  the  goods  might  be 
sold  by  them  on  his  account ;  and  of  the  same  date  drew  upon 
them  bills  to  the  amount  of  520?.,  which  were  duly  accepted, 
and  have  since  been  paid  by  them ;  and  for  which  they  have 
never  been  reimbursed  by  Freeman,  who  became  a  bankrupt  on 
the  15th  of  August  following.     The  bills  accepted  by  Freeman, 

(a)  Held  in  Cam.  Scacc.  that  where  the  bills  of  lading  to  a  third  person 

the  consignee  of  goods  becomes  in-  for    a    valuable    consideration;     the 

solvent,  the  consignor  may  stop  them  right  of  the  consignor  not  being  di- 

in  tranititu  before  the  consignee  gains  vested  by  the  assignment.     But  this 

possession.     In   such   cases  also  the  judgment  was  reversed,  and  the  latter 

consignor    may   stop    the    goods   in  point  is  now  settled  otherwise. 
transitu,  though  the  consignee  assign 


LICKBARROW    V.    MASON.  1061 

for  the  price  of  the  goods  shipped  by  Tvirings,  had  not  Ijecome 
due  on  the  15th  of  August,  but  on  notice  of  his  bankruptcy 
they  sent  tlie  bill  of  lading  which  remained  in  their  custody  to 
the  defendants  at  Liverpool^  with  a  special  indorsement  to  de- 
liver to  them  and  no  other:  which  the  defendants  received  on 
the  28th  of  August,  1786,  together  with  the  invoice  of  the  goods 
and  a  power  of  attorney.  The  ship  arrived  at  Liverpool  on  the 
28th  of  August,  and  the  goods  were  delivered  by  the  master,  on 
account  of  Turings,  to  the  defendants,  who,  on  demand  and 
tender  of  freight,  refused  to  deliver  the  same  to  the  plaintiffs. 

The  defendants,  in  this  case,  are  not  stakeholders,  but  they 
are  in  effect  the  same  as  Turings,  and  the  possession  they  have 
got  is  the  possession  of  Turings.  The  plaintiffs  claim  undei' 
Freeman;  but  though  they  derive  a  title  under  him,  they  do 
not  represent  him,  so  as  to  be  answerable  for  his  engagements  ; 
nor  are  they  affected  by  any  notice  of  those  circumstances 
which  would  bar  the  claim  of  him  or  his  assignees.  If  they 
have  acquired  a  legal  right,  they  have  acquired  it  honestly  ; 
and  if  they  have  trusted  to  a  bad  title,  they  are  innocent  suf- 
ferers. The  question  then  is,  whether  the  plaintiffs  have  a 
superior  legal  title  to  that  right  which,  on  principles  of  natural 
justice,  the  original  owner  of  the  goods  not  paid  for  has  to 
maintain  that  possession  of  them,  which  he  actually  holds  at 
the  time  of  the  demand? 

The  argument  on  the  part  of  the  plaintiffs,  asserts  that  the 
indorsement  of  the  bill  of  lading  by  the  Turings  is  an  assign- 
ment of  the  property  in  the  goods  to  Freeman,  in  the  same 
manner  as  the  indorsement  of  a  bill  of  exchange  is  an  assign- 
ment of  the  debt :  that  Freeman  could  assign  over  that  prop- 
erty, and  that  by  delivery  of  the  bill  of  lading  to  the  plaintiffs 
for  a  valuable  consideration,  they  have  a  just  right  to  the  prop- 
erty conveyed  by  it,  not  affected  by  any  claim  of  the  Turings, 
of  which  they  had  no  notice.  On  the  part  of  the  defendant  it  is 
argued,  tliat  the  bill  of  lading  is  not  in  its  nature  a  negotiable 
instrument ;  that  it  more  resembles  a  chose  in  action ;  that  the 
indorsement  of  it  is  not  an  assignment  that  conveys  any  inter- 
est, but  a  mere  authority  to  the  consignee  to  receive  the  goods 
mentioned  in  the  bill ;  and  therefore  it  cannot  be  made  a  secur- 
ity by  the  consignee  for  money  advanced  to  him  ;  but  the  per- 
son Avho  accepted  it  must  stand  in  the  place  of  the  consignee, 
and  cannot  gain  a  better  title  than  he  had  to  give.     As  these 


1062  LICICBARROW    V.    MASON. 

propositions  on  either  side  seem  to  be  stated  too  loosely,  and  as 
it  is  of  great  importance  that  the  nature  of  an  instrument  so 
frequent  in  commerce  as  a  bill  of  lading  should  be  clearly  de- 
fined, I  think  it  necessary  to  state  my  ideas  of  its  nature  and 
effect :  — 

A  bill  of  lading  is  the  written  evidence  of  a  contract  for  the 
carriage  and  delivery  of  goods  sent  by  sea  for  a  certain  freight. 
The  contract  in  legal  language  is  a  contract  of  bailment ;  2 
Lord  Raym.  912.  In  the  usual  form  of  the  contract  the 
undertaking  is  to  deliver  to  the  order  or  assigns  of  the  shipper. 
By  the  delivery  on  board,  the  ship-master  acquires  a  special 
property  to  support  that  possession  which  he  holds  in  the  right 
of  another,  and  to  enable  him  to  perform  his  undertaking.  The 
general  property  remains  with  the  shipper  of  the  goods  until  he 
has  disposed  of  it  by  some  act  sulheicnt  in  law  to  transfer  prop- 
erty. The  indorsement  of  the  bill  of  lading  is  simiily  a  direc- 
tion of  the  delivery  of  the  goods.  When  this  indorsement  is  in 
blank,  the  holder  of  the  bill  of  lading  may  receive  the  goods^ 
and  his  receipt  will  discharge  the  ship-master ;  but  the  holder 
of  the  bill,  if  it  came  into  his  hands  casually  without  any  just 
title,  can  acquire  no  property  in  the  goods,  A  special  indorse- 
ment defines  the  person  appointed  to  receive  the  goods  ;  his 
receipt  or  order  would,  I  conceive,  be  a  sufficient  discharge  to 
the  ship-master ;  and  in  this  respect,  I  hold  the  bill  of  lading  to 
be  assignable.  But  what  is  it  that  the  indorsement  of  the  bill 
of  lading  assigns  to  the  holder  or  the  indorsee  ?  A  right  to 
receive  the  goods  and  to  discharge  the  ship-master,  as  having 
performed  his  undertaking.  If  any  further  effect  be  allowed  to 
it,  the  possession  of  a  bill  of  lading  would  have  greater  force 
than  the  actual  possession  of  the  goods.  Possession  of  goods 
is  primd  facie  evidence  of  title ;  but  that  possession  may  be 
precarious,  as  of  a  deposit ;  it  may  be  criminal,  as  of  a  thing 
stolen ;  it  may  be  qualified,  as  of  things  in  the  custody  of 
a  servant,  carrier,  or  a  factor.  Mere  possession,  without  a 
just  title,  gives  no  property  ;  and  the  person  to  Avhom  such 
possession  is  transferred  by  delivery,  must  take  his  hazard 
of  the  title  of  his  author.  The  indorsement  of  a  bill  of  lading 
differs  from  the  assignment  of  a  chose  in  action,  that  is  to  say, 
of  an  obligation,  as  much  as  debts  differ  from  effects.  Goods  in 
pawn,  goods  bought  before  delivery,  goods  in  a  Avarehouse,  or 
on  ship-board,  may  all  be  assigned.      The  order  to  deliver  is  an 


LICKBARROW    V.    MASON.  1063 

assignment  of  the  thing  itself,  wliich  ought  to  be  delivered  on 
demand,  and  the  right  to  sue  if  the  demand  is  refused,  is  at- 
tached to  the  thing.  The  case  in  1  Lord  Raym.  271  was  well 
determined  on  the  princij^al  point,  that  the  consignee  might 
maintain  an  action  for  the  goods,  because  he  had  either  a 
special  property  in  them,  or  a  right  of  action  on  the  contract : 
and  I  assent  to  the  dictum,  that  he  might  assign  over  his  right. 
But  the  question  remains,  What  right  passes  by  the  first  in- 
dorsement, or  by  the  assignment  of  it?  An  assignment  of 
goods  in  pawn,  or  of  goods  bought  but  not  delivered,  cannot 
transmit  a  right  to  take  the  one  without  redemption,  and  the 
other  without  the  payment  of  the  price.  As  the  indorsement 
of  a  bill  of  lading  is  an  assignment  of  the  goods  themselves,  it 
differs  essentially  from  the  indorsement  of  a  bill  of  exchange ; 
which  is  the  assignment  of  a  debt  due  to  the  payee,  and  which, 
by  the  custom  of  the  trade,  passes  the  whole  interest  in  the 
debt  so  completely,  that  the  holder  of  tlie  bill  for  a  valuable 
consideration  without  notice,  is  not  affected  even  by  the  crime 
of  the  person  from  whom  he  received  the  bill. 

Bills  of  lading  differ  essentially  from  bills  of  exchange  in 
another  respect. 

Bills  of  exchange  can  only  be  used  for  one  given  purpose, 
namely,  to  extend  credit  by  a  speedy  transfer  of  the  debt  which 
one  person  owes  another,  to  a  third  person.  Bills  of  lading 
may  be  assigned  for  as  many  different  purposes  as  goods  may 
be  delivered.  They  may  be  indorsed  to  the  true  owner  of  the 
goods  by  the  freighter,  who  acts  merely  as  his  servant.  They 
may  be  indorsed  to  a  factor  to  sell  for  the  owner.  They  may 
be  indorsed  by  the  seller  of  the  goods  to  the  buyer.  They  are 
not  drawn  in  any  certain  form.  They  sometimes  do  and  some- 
times do  not  express  on  whose  account  and  risk  the  goods  are 
shipped.  They  often,  especially  in  time  of  war,  express  a  false 
account  and  risk.  They  seldom,  if  ever,  bear  upon  the  face  of 
them  any  indication  of  the  purpose  of  the  indorsement.  To 
such  an  instrument,  so  various  in  its  use,  it  seems  impossible  to 
apply  the  same  rules  as  govern  the  indorsement  of  bills  of  ex- 
change. The  silence  of  all  authors  treating  of  commercial  law 
is  a  strong  argument  that  no  general  usage  has  made  them 
negotiable  as  bills.  Some  evidence  appears  to  have  been  given 
in  other  cases  (a)  that  the  received  opinion  of  merchants  was 
(a)  Snee  v.  Prescot,  1  Atk.  245 ;  Fearon  v.  Bowers,  post. 


1064  LICKB ARROW    V.   MASON. 

against  their  being  so  negotiable.  And  unless  there  was  a 
clear,  established  general  usage  to  place  the  assignment  of  a 
bill  of  lading  upon  the  same  footing  as  the  indorsement  of  a  bill 
of  exchange,  that  country  which  should  first  adopt  such  a  law 
would  lose  its  credit  with  the  rest  of  the  commercial  world. 
For  the  immediate  consequence  would  be  to  prefer  the  interest 
.of  the  resident  factors  and  their  creditors,  to  the  fair  claim  of 
the  foreign  consignor.  It  would  not  be  much  less  pernicious  to 
its  internal  commerce  :  for  every  case  of  this  nature  is  founded 
in  a  breach  of  confidence,  alwaj^s  attended  with  a  susi)icion  of 
collusion,  and  leads  to  a  dangerous  and  false  credit,  at  the  liaz- 
ard  and  expense  of  tlie  fair  trader.  If  bills  of  lading  are  not  ne- 
gotiable as  bills  of  exchange,  and  yet  are  assignable,  Avhat  is  the 
consequence?  That  the  assignee  by  indorsement  must  inquire 
under  what  title  the  bills  have  come  to  the  hands  of  the  person 
from  whom  he  takes  them.  Is  this  more  difficult  than  to  in- 
quire into  the  title  by  which  the  goods  are  sold  or  assigned? 
In  the  case  of  (a)  ffartop  v.  Hoare,  jewels  deposited  with  a 
goldsmith  were  pawned  by  him  at  a  banker's.  Was  there  any 
imputation,  even  of  neglect,  in  a  banker  trusting  to  the  appar- 
ent possession  of  jewels  by  a  goldsmith?  Yet  they  were  the 
property  of  another,  and  the  banker  suffered  the  loss.  It  is  re- 
ceived law,  that  a  factor  may  sell,  but  cannot  pawn,  the  goods 
of  his  own  consignor,  Patterson  v.  Tanh,  2  Str.  1178.  The  per- 
son, therefore,  who  took  an  assignment  of  goods  from  a  factor 
in  security,  could  not  retain  them  against  the  claim  of  the  con- 
signor ;  and  yet,  in  this  case  the  factor  might  have  sold  them 
and  embezzled  the  money.  It  has  been  argued,  that  it  is  neces- 
sary in  commerce  to  raise  money  on  goods  at  sea,  and  this  can 
only  be  done  by  assigning  the  bills  of  lading.  Is  it  then 
nothing,  that  an  assignee  of  a  bill  of  lading  gains  by  the 
indorsement  ?  He  has  all  the  right  the  indorser  could  give 
him :  a  title  to  the  possession  of  the  goods  when  they  arrive. 
He  has  a  safe  security,  if  he  has  dealt  with  an  honest  man. 
And  it  seems  as  if  it  could  be  of  little  utility  to  trade,  to  extend 
credit  by  affording  a  facility  to  raise  money  by  unfair  dealing. 
jSIoney  will  be  raised  on  goods  at  sea,  though  bills  of  lading 
should  not  be  negotiable,  in  every  case  where  there  is  a  fair 
ground  of  credit :  but  a  man  of  doubtful  character  will  not  find 
it  so  easy  to  raise  money  at  the  risk  of  others. 
(a)  2  Str.  1187;  1  Wils.  8. 


LICKBARROW   V.   MASON.  1065 

The  conclusions  which  follow  from  this  reasoning,  if  it  be 
just,  are  —  1st.  That  an  order  to  direct  the  delivery  of  goods 
indorsed  on  a  bill  of  lading  is  not  equivalent,  nor  even  analogous, 
to  tlie  assignment  of  an  order  to  pay  money  by  the  indorsement 
of  a  bill  of  exchange.  2ndly.  That  the  negotialility  of  bills, 
and  promissory  notes,  is  founded  on  the  custom  of  merchants, 
and  positive  law ;  but,  as  there  is  no  positive  law,  neither  can 
any  custom  of  merchants  apply  to  such  an  instrument  as  a  bill 
of  lading.  3rdly.  That  it  is,  therefore,  not  negotiable  as  a  bill, 
but  assignable ;  and  passes  such  right,  and  no  better,  as  the 
person  assigning  had  in  it. 

This  last  proposition  I  confirm  by  the  consideration,  that 
actual  delivery  of  the  goods  does  not  of  itself  transfer  an 
absolute  ownership  in  them,  without  a  title  of  property;  and 
that  the  indorsement  of  a  bill  of  lading,  as  it  cannot  in  any 
case  transfer  more  right  than  the  actual  delivery,  cannot  in 
every  case  pass  the  property ;  and  I  therefore  infer,  that  the 
mere  indorsement  can  in  no  case  convey  an  absolute  property. 
It  may,  however,  be  said,  that  admitting  an  indorsement  of  a 
bill  of  lading  does  not  in  all  cases  import  a  transfer  of  the 
property  of  the  goods  consigned,  yet  where  the  goods,  when 
delivered,  would  belong  to  the  indorsee  of  the  bill,  and  the  in- 
dorsement accompanies  a  title  of  property,  it  ought  in  law  to 
bind  the  consignor,  at  least  with  respect  to  the  interest  of  third 
parties.  This  argument  has,  I  confess,  a  very  specious  appear- 
ance. The  whole  difficulty  of  the  case  rests  upon  it ;  and  I  am 
not  surprised  at  the  impression  it  has  made,  having  long  felt 
the  force  of  it  myself.  A  fair  trader,  it  is  said,  is  deceived  by 
the  misplaced  confidence  of  the  consignor.  The  purchaser  sees 
a  title  to  the  delivery  of  the  goods  placed  in  the  hands  of  the 
man  who  offers  them  to  sale.  Goods  not  arrived  are  every 
day  sold  without  any  suspicion  of  distress,  on  speculations  of 
the  fairest  nature.  The  purchaser  places  no  credit  in  the  con- 
signee, but  in  the  indorsement  produced  to  him,  which  is  the 
act  of  the  consignor.  The  first  consideration  which  affects  this 
argument  is,  that  it  proves  too  much,  and  is  inconsistent  Avitli 
the  admission.  But  let  us  examine  what  the  legal  right  of  the 
vendor  is,  and  whether,  with  respect  to  him,  the  assignee  of  a 
bill  of  lading  stands  on  a  better  ground  than  the  consignee 
from  whom  he  received  it.  I  state  it  to  be  a  clear  proposition, 
that  the  vendor  of  goods  not  paid  for  may  retain  the  possession 


lOGG  LICKBARROW    V.   MASON. 

against  the  vendee ;  not  by  aid  of  any  equity,  but  on  grounds 
of  law.  Our  oldest  books  (a)  consider  the  payment  of  the  })riee 
(day  not  being  given  (^b}')  as  a  condition  precedent  implied  in 
the  contract  of  sale ;  and  that  the  vendee  cannot  take  the 
goods,  nor  sue  for  them,  without  tender  of  the  price.  If  day 
had  been  given  for  payment,  and  the  vendee  could  support  an 
action  of  trover  against  the  vendor,  the  price  unpaid  must  be 
deducted  from  the  damages,  in  the  same  manner  as  if  he  had 
brought  an  action  on  the  contract,  for  the  non-delivery.  Snee  v. 
Prescot,  1  Atk.  245.  The  sale  is  not  executed  before  delivery : 
and  in  the  simplicity  of  former  times,  a  delivery  into  the  actual 
possession  of  the  vendee  or  his  servant  was  ahvaj^s  supposed. 
In  the  variety  and  extent  of  dealing  Avliich  the  increase  of 
commerce  has  introduced,  the  delivery  may  be  presumed  from 
circumstances,  so  as  to  vest  a  property  in  the  vendee.  A 
destination  of  the  goods  l)}-  the  vendor  to  the  use  of  the 
vendee  ;  the  marking  them,  or  making  them  up  to  be  delivered  ; 
the  removing  them  for  the  purpose  of  l)eing  delivered,  may 
all  entitle  the  vendee  to  act  as  owner,  to  assign,  and  to  main- 
tain an  action  against  a  third  person,  into  Avliose  hands  they 
have  come.  But  the  title  of  the  vendor  is  never  entirely 
divested,  till  the  goods  have  come  into  the  possession  of  the 
vendee.  He  has  therefore  a  complete  right,  for  just  cause,  to 
retract  the  intended  delivery,  and  to  stop  the  goods  in  transitu. 
The  cases  determined  in  our  courts  of  law  have  confirmed  this 
doctrine,  and  the  same  law  obtains  in  other  countries. 

In  an  action  tried  before  me  at  Cruildhall^  after  the  last  Trin- 
ity Term,  it  appeared  in  evidence,  that  one  Bowering  had 
brought  a  cask  of  Inchgo  of  Verrulez  and  Co.  at  Amsterdam^ 
which  was  sent  from  the  Avarehouse  of  the  seller,  and  ship]:)ed 
on  board  a  vessel  commanded  by  one  TuUoh,  by  the  appoint- 
ment of  Bowering.  The  bills  of  lading  were  made  out,  and 
signed  by  TuUoh,  to  deliver  to  Bowering  or  order,  who  imme- 
diately indorsed  one  of  them  to  his  correspondent  in  London^ 
and  sent  it  by  the  post.  Verrulez,  having  information  of  Bow- 
ering's  insolvency  before  the  ship  sailed  from  the  Texel,  sum- 
moned TuUoh  the  ship-master  before  the  court  at  Amsterdam., 
who  ordered  him  to  sign  other  bills  of  lading,  to  the  order  of 


(a)  See  Hob.  41,  and  the  Year  Book  {h)  [See  Martindale  v.  Smith,  1  Q. 

there  cited.  B.  389.] 


LICKBARROAV    V.    MASON. 


1061 


Verrulez.  Upon  the  arrival  of  the  ship  in  London^  the  ship- 
master delivered  the  goods,  according  to  the  last  bills,  to  the 
order  of  Verrulez.  This  case,  as  to  the  practice  of  merchants, 
deserves  particular  attention,  for  the  judges  of  the  court  at 
Amsterdam  are  merchants  of  the  most  extensive  dealings,  and 
they  are  assisted  by  very  eminent  lawyers.  The  cases  in  our 
law,  which  I  have  taken  some  pains  to  collect  and  examine,  are 
very  clear  upon  this  point.  Snee  v.  Prescot,  though  in  a  court 
of  equity,  is  professedly  determined  on  legal  grounds  by  Lord 
Hardwicke,  who  was  well  versed  in  the  principles  of  law  ;  and 
it  is  an  authority,  not  only  in  support  of  the  right  of  the  owner 
unpaid  to  retain  against  the  consignee,  but  against  those  claim- 
ing under  the  consignee  by  assignment  for  valuable  considera- 
tion, and  without  notice.     But  the  case  of  Fearon  v.  Boivers  (a), 


(ffl)  Fearon  v.  Boioers,  Guildhall, 
Mai'cli  28,  1753,  coram  Lee,  C.  J. 

Detinne  against  the  master  or  cap- 
tain of  a  sliip.  On  the  general  issne 
pleaded,  the  case  appeared  to  be,  that 
one  Hall,  of  Salishurtj,  had  written  to 
Aslvell  and  Co.,  merchants  at  Malaga, 
to  send  him  20  bntts  of  olive  oil, 
which  Askell  accordingly  bought,  and 
shipped  on  board  the  ship  Tavistocli, 
of  which  tlie  defendant  was  com- 
mander, who  signed  three  bills  of 
lading  acknowledging  tlie  receipt  of 
the  goods,  to  be  delivered  to  the 
order  of  the  sliipper.  In  the  bills 
was  tlie  usual  clause  —  that  one  being 
performed,  the  other  two  should  be 
void. 

The  goods  being  thus  shipped, 
Askell  sent  an  invoice  thereof,  and 
also  one  of  the  bills  of  lading,  to 
Hall,  indorsed  by  Askell,  to  deliver 
the  contents  to  Hall;  and  Askell  at 
the  same  time  sent  to  Jones,  liis  part- 
ner in  England,  a  bill  of  exchange 
drawn  on  Hall  for  the  amount  of  the 
price  of  the  oil ;  and  also  another  of 
the  l)ills  of  lading  indorsed  by  Askell 
to  deliver  the  contents  to  Jones.  Tlie 
bill  of  exchange  w'as  presented  to 
Hall,  but  not  being  paid  by  him  it 
was  returned  protested ;  wliereupon 
Jones,  on  the  1st  of  September,  1752 


(a  day  or  two  after  the  ship  arrived) , 
applied  to  the  defendant  to  deliver 
the  oils  to  him,  and  having  produced 
his  bill  of  lading,  tlie  defendant 
promised  to  deliver  them  accord- 
ingly. But  the  ship  not  being  re- 
ported to  the  custom-house,  the  oils 
could  not  be  then  delivered ;  and  be- 
fore they  were  delivered,  the  plaintifl', 
on  the  3rd  of  September,  produced 
the  bill  of  lading  sent  to  Hall,  with 
an  indorsement  thereon  by  Hall  to 
deliver  the  contents  to  the  plaintiff, 
and  also  tlie  invoice,  upon  the  credit 
of  which  he  had  advanced  to  Hall 
200?.  —  Notwithstanding  this,  the  de- 
fendant afterwards  delivered  the  oils 
to  Jones,  and  took  his  receipt  for 
tliem  on  the  back  of  the  bill  of  lad- 
ing. 

For  the  plaintifl'  it  was  contended, 
that  the  bill  of  lading  indorsed  to 
Hall,  and  by  him  to  the  plaintifl",  had 
fixed  tlie  property  of  the  goods  in 
the  ])Iaintitt'.  Tliat  the  consignee  of  a 
bill  of  lading  has  such  a  property  that 
he  may  assign  it  over ;  Evans  v.  Mart- 
lett,  1  Lord  Eaym.  271.  There  it  is 
laid  down,  if  goods  are  by  bill  of  lad- 
ing consigned  to  A.,  A.  is  the  owner, 
and  must  bring  the  action  against  the 
master  of  the  ship  if  tliej'  are  lost : 
but  if  the  bill  be  special  to  deliver  to 


10G8 


LICKBARUOW    V.    MASON. 


tried  before  Lord  Chief  Justice  Lee^  is  a  case  at  law,  and  it 
is  to  the  same  effect  as  Snee  v.  Frescot.  So  also  is  the 
case  of  the  Assignees  of  Burghall  v.  HoioardXa'),  before  Lord 


A.  for  the  use  of  B.,  B.  ought  to 
bring  the  action;  but  if  the  bill  be 
general,  and  the  invoice  only  shows 
they  are  upon  the  account  of  B.,  A. 
ought  to  bring  the  action,  for  the 
property  is  in  him,  and  B.  has  only  a 
trust ;  per  totam  curiam.  Holt,  C.  J., 
said  the  consignee  of  a  bill  of  lading 
has  such  a  property  that  he  may 
assign  it  over;  and  SIiov:er  said,  it 
had  been  adjudged  so  in  the  Ex- 
chequer. It  has  been  further  in- 
sisted, that  the  plaintiff  had  advanced 
the  200Z.  on  the  credit  of  the  bill  of 
lading,  in  the  course  of  trade,  and  no 
objection  was  made  that  the  oils  had 
not  been  paid  for;  for  that  would 
prove  too  nuicli,  namely,  that  the  bill 
of  lading  was  not  negotiable.  And 
the  indorsement  was  compareil  to  the 
indorsement  of  a  bill  of  exchange, 
which  is  good,  though  the  ])ill  origi- 
nally was  obtained  by  fraud.  Mer- 
chants were  examined  on  both  sides, 
and  seemed  to  agree  that  the  indorse- 
ment of  a  bill  of  lading  vests  the 
property;  but  that  the  original  con- 
signor, if  not  paid  for  the  goods,  had 
a  right,  by  any  means  that  he  could, 
to  stop  their  coming  to  the  hands  of 
the  consignee  till  paid  for.  One  of 
the  witnesses  said,  he  had  a  like  case 
before  the  Chancellor,  who  upon  that 
occasion  said,  he  thought  the  con- 
signor had  a  right  to  get  the  goods 
in  such  a  case  back  into  his  hands 
in  any  Avay,  so  as  he  did  not  steal 
them. 

It  also  appeared  by  the  evidence  of 
merchants  and  captains  of  ships,  that 
the  usage  was,  where  three  bills  of 
lading  were  signed  by  the  captain, 
and  indorsed  to  different  persons,  the 
captain  had  a  right  to  deliver  the 
goods  to  whichever  he  thought  prop- 
er ;  that  he  was  discharged  by  a  de- 
livery to  either  with  a  receipt  on  the 


bill  of  lading,  and  was  not  obliged  to 
look  into  the  invoice  or  consider  the 
merits  of  the  different  claims. 

Lee,  C  J.,  in  summing  up  the  evi- 
dence, said  that,  to  be  sure,  nakedly 
considered,  a  bill  of  lading  transfers 
the  property,  and  a  right  to  assign 
that  property  by  indorsement :  that 
the  invoice  strengthens  that  right  by 
showing  a  farther  intention  to  trans- 
fer the  property.  But  it  ai)peared  in 
this  case,  that  Jones  had  the  other 
bill  of  lading  to  be  as  a  curb  on  Hall, 
who  in  fact  had  never  paid  for  the 
goods.  And  it  appeared  by  the  evi- 
dence, that,  according  to  the  usage  of 
trade,  the  captain  was  not  concerned 
to  examine  who  had  the  best  right  on 
the  different  bills  of  lading.  All  he 
had  to  do  was  to  deliver  the  goods 
upon  one  of  the  bills  of  lading,  which 
was  done.  The  jury  therefore  were 
directed  by  the  Chief  Justice  to  rtnd  a 
verdict  for  the  defendant,  which  they 
accoi'dingly  did.  [Accord,  as  to  dis- 
charge of  the  master  by  delivery  un- 
der either  bill,  The  Tigress,  Brown  & 
Lushington,  Adm.  Ca.  38;  32  L.  J. 
Adm.  1)7.  But  that  Fearnn  v.  Bowers 
cannot  be  supported  to  its  full  extent 
in  protecting  a  master  who  delivers  to 
one  indorsee  irith  notice  that  another 
part  of  the  bill  of  lading  is  outstand- 
ing with  another  indorsee,  see  Ghjn 
V.  East  and  West  India  Dock  Co.,  7 
App.  Ca.  591.] 

(«)  Assignees  of  BunjhaJl,  a  bank- 
rupt, V.  HovKird.  At  Guildhall  sit- 
tings after  Hil.  32  G.  2,  coram  Lord 
Mansfiehl.  One  Burghall  at  London 
gave  an  order  to  Bromley  at  Liverpool 
to  send  him  a  quantity  of  cheese. 
Bromley  accordingly  shipped  a  ton  of 
cheese  on  board  a  ship  there,  where- 
of Howard,  the  defendant,  was  mas- 
ter, who  signed  a  bill  of  lading  to 
deliver  it  in  good  condition  to  Burg- 


LICKBARROW    V.    MASON.  10G9 

Mansfield.  The  right  of  the  consignor  to  stop  the  goods  is 
here  considered  as  a  legal  right.  It  will  make  no  difference  in 
the  case  whether  the  right  is  considered  as  springing  from  the 
original  property  not  yet  transferred  by  delivery,  or  as  a  right 
to  retain  the  things  as  a  pledge  for  the  price  unpaid.  In  all 
the  cases  cited  in  the  course  of  the  argument,  the  right  of  the 
consignor  to  stop  the  goods  is  admitted  as  against  the  con- 
sio'nee.  But  it  is  contended  that  the  rig'ht  ceases  as  as^ainst 
a  person  claiming  under  the  consignee  for  a  valuable  considera- 
tion, and  without  notice  that  the  price  is  unpaid.  To  support 
this  position,  it  is  necessary  to  maintain  that  the  right  of  the 
consignor  is  not  a  perfect  legal  right  in  the  thing  itself,  but 
that  it  is  only  founded  upon  a  personal  exception  to  the  con- 
signee, wliich  would  preclude  his  demand  as  contrary  to  good 
faith,  and  unconscionable.  If  the  consignor  had  no  legal  title, 
the  question  between  him  and  the  bond  fide  purchaser  from  the 
consignee  would  turn  on  very  nice  considerations  of  equity. 
But  a  legal  lien,  as  well  as  a  right  of  property,  precludes  these 
considerations ;  and  the  admitted  right  of  the  consignor  to  stop 
the  goods  in  transitu  as  against  the  consignee,  can  only  rest 
upon  his  original  title  as  owner,  not  divested,  or  upon  a  legal  title 
to  hold  the  possession  of  the  goods  till  the  price  is  paid,  as  a 
pledge  for  the  price.  It  has  been  asserted  in  the  course  of  the 
argument,  that  the  right  of  the  consignor  has  by  judicial  de- 
terminations been  treated  as  a  mere  equitable  claim  in  cases 
between  him  and  the  consignee.  To  examine  the  force  of  this 
assertion,  it  is  necessary  to  take  a  review  of  the  several  de- 
terminations. 

The  first  is  the  case  of  Wright  v.  Campbell^  4  Burr.  2046,  on 

liall  in  London.  The  ship  arrived  in  Mansfield  was  of  opinion  tliat  tlie 
the  Thames,  bnt  Burgliall  liaving  be-  plaintiUs  liad  no  foundation  to  re- 
corae  a  bankrupt,  the  defeiulant  was  cover;  and  said  he  liad  Ivuown  it  sev- 
ordered,  on  behalf  of  Bromley,  not  eral  times  ruled  in  Chancer}',  that 
to  deliver  the  goods,  and  accordingly  where  the  consignee  becomes  a  bank- 
refused,  though  the  freight  was  ten-  rupt,  and  no  part  of  the  price  had 
dered.  It  appeai-ed  by  the  plaintift's  been  paid,  that  it  was  lawful  for  the 
witnesses  that  no  particular  ship  was  consignor  to  seize  the  goods  before 
mentioned  whereby  the  cheese  should  they  come  to  the  hands  of  the  con- 
be  sent,  in  which  case  the  shipper  signee  or  his  assignees  ;  and  that  this 
was  to  be  at  the  risk  of  the  peril  of  was  ruled,  not  upon  principles  of 
the  seas.  The  action  was  on  the  case  equity  only,  but  the  laws  of  property, 
upon  the  custom  of  the  realm  against  The  plaintifis  were  nonsuited, 
the    defendant     as     carrier.       Lord 


1070  LlCKnAi:i:n\v   v.   mason. 

which  the  chief  stress  is  hiiil.  Tlu-  lirst  oljflervatioii  thut  occurs 
upon  that  case  is,  that  iiothin*,'  was  »k'tcriniiic(l  hy  it.  A  case 
was  reserved  by  the  jud^'e  at  NtMi  Priim,  on  tl»e  arg^unuMit  of 
which  the  Court  thout^ht  the  facts  imperfectly  stated,  and  di- 
rected a  new  triaL  That  case  cannot  tlierefore  Ix;  ur^ed  as  a 
decision  upon  tlie  point.  Bnt  it  is  (piotcd  as  L-ontainin<,'  in  the 
report  of  it  an  opinion  of  Lord  Munxjithl,  that  the  rijjlit  of  the 
consignor  to  stoi)  the  goods  caniutt  l)o  set  up  against  a  third 
person  claiming  under  an  indorsfim-nt  for  valui"  aiul  withont  no- 
tice. The  authority  <>f  such  an  oi»inioii.  though  no  decision  had 
followed  upon  it,  would  deservedly  he  very  great,  fmni  the  high 
respect  due  to  the  experience  and  wisdom  of  so  great  a  judge. 
But  I  am  not  able  to  discover  that  his  opinion  was  delivered 
to  that  extent,  and  I  assent  to  the  opinion  as  it  wius  deliv- 
ered, and  very  correctly  applied  to  the  case  then  in  ipiestion. 
Lord  3IansfiehJ  is  there  speaking  of  the  consignment  of  goods 
to  a  factor  to  sell  for  the  owner;  antl  he  very  truly  olwerves, 
1st,  that  as  against  the  factor,  the  owner  may  retain  the  goods ; 
2ndly,  that  a  ])crson  into  whose  hands  the  factor  has  passed  the 
consignment  with  notice,  is  exactly  in  the  same  situation  with 
the  factor  himself;  3rdly,  that  a  l>ond  fide  purchaser  from  the 
factor  shall  have  a  right  to  the  delivery  of  the  goo<ls,  because 
they  were  sold  hond  fi(li\  and  by  the  owner's  own  authoiity.  If 
the  owner  of  the  goods  entrust  another  to  sell  them  tor  him, 
and  to  receive  the  price,  there  is  no  doubt  but  that  he  has 
bound  himself  to  deliver  the  goods  to  the  purchaser;  and  that 
would  hold  equally,  if  the  goods  had  never  been  removed  from 
his  warehouse.  The  question  on  the  right  of  the  consignor  to 
stop  and  retain  the  goods,  can  never  occur  where  the  factor  has 
acted  strictly  according  to  the  order  of  his  principal,  and  where, 
consequently,  he  has  bound  him  by  his  contract.  There  would 
be  no  possible  grcnuid  for  argument  in  the  case  now  before  the 
court,  if  the  plaintiffs  in  the  action  could  maintain,  that  Turing 
and  Co.  had  sold  to  them  by  the  intervention  of  Freeman,  and 
were  therefore  bound  ex  contractu  to  deliver  the  goods.  Lord 
MansfiehTs  opinion  upon  the  direct  question  of  the  right  of  the 
consignor  to  stop  the  goods  against  a  third  party,  who  has  ob- 
tained an  indorsement  of  the  bill  of  lading,  is  quoted  in  favor 
of  the  consignor,  as  delivered  in  two  cases  at  Nisi  Prius  ;  (a) 
Savifjnac  v.  Cuff  in  1778,  and  (6)  Stokes  v.  La  Riviere  in  1785. 
(a)  Ante,  p.  7-11.  (?>)  Ante,  p/753. 


LICKBAKEOW    V.    MASON.  1071 

Observations  are  made  on  these  cases,  that  they  were  gov- 
erned by  particular  circumstances  ;  and  undoubtedly  when  there 
is  not  an  accurate  and  agreed  state  of  them,  no  great  stress  can 
be  laid  on  the  authority.  The  case  of  (a)  Caldwell  v.  Ball  is 
improperly  quoted  on  the  part  of  the  plaintiffs  in  the  action, 
because  the  question  there  was  on  the  priority  of  consignments, 
and  the  right  of  the  consignor  did  not  come  under  consideration. 
The  case  of  (5)  Hihhert  v.  Carter  was  also  cited  on  the  same 
side,  not  having  decided  any  question  upon  the  consignor's 
right  to  stop  the  goods,  but  as  establishing  a  position  that  by 
the  indorsement  of  the  bill  of  lading,  the  property  was  so  com- 
pletely transferred  to  the  indorsee,  that  the  shipper  of  the  goods 
had  no  longer  an  insurable  interest  in  them.  The  bill  of  ladino- 
in  that  case  had  been  indorsed  to  a  creditor  of  the  shipper ;  and, 
undoubtedly,  if  the  fact  had  been  as  it  was  at  first  supposed, 
that  the  cargo  had  been  accepted  in  payment  of  the  debt,  the 
conclusion  would  have  been  just :  for  the  property  of  the  goods, 
and  the  risk  would  have  completely  passed  from  the  shipper  to 
the  indorsee ;  it  would  have  amounted  to  a  sale  executed  for  a 
consideration  paid.  But  it  is  not  to  be  inferred  from  that  case, 
that  an  indorsement  of  a  bill  of  lading,  the  goods  remaining  at 
the  risk  of  the  shipper,  transfers  the  property  so  that  a  policy  of 
insurance  upon  them  in  his  name  would  be  void.  The  greater 
part  of  the  consignments  from  the  West  Indies^  and  all  countries 
where  the  balance  of  trade  is  in  favour  of  England,  are  made  to 
a  creditor  of  the  shipper ;  but  they  are  no  discharge  of  the  debt 
by  indorsement  of  the  bill  of  lading ;  the  expense  of  insurance, 
freight,  duties,  are  all  charged  to  the  shipper,  and  the  net  pro- 
ceeds alone  can  be  applied  to  the  discharge  of  his  debt.  The 
case,  therefore,  has  no  application  to  the  present  question.  And 
from  all  the  cases  that  have  been  collected,  it  does  not  appear 
that  there  has  ever  been  a  decision  against  the  leo-al  rigfht  of  the 
consignor  to  stop  the  goods  in  transitu,  before  the  case  now 
brought  before  this  court.  When  a  point  in  law  which  is  of 
general  concern  in  the  daily  business  of  the  world  is  directly 
decided,  the  event  of  it  fixes  the  public  attention,  directs  the 
opinion,  and  regulates  the  practice  of  those  who  are  interested. 
But  where  no  such  decision  has  in  fact  occurred,  it  is  impossible 
to  fix  any  standard  of  opinion  upon  loose  reports  of  incidental 
arguments.  The  rule,  therefore,  which  the  court  is  to  lay  down 
(«)  1  Term  Rep.  B.  R.  205.  (b)  1  Term  Rep.  B.  R.  745. 


1072  LICKBARROW    V.    MASON. 

in  this  case,  will  have  the  effect,  not  to  disturb,  Ijut  to  settle, 
the  notions  of  the  commercial  part  of  this  country,  on  a  point 
of  very  great  importance,  as  it  regards  the  security  and  good 
faith  of  their  transactions.  For  these  reasons  we  think  the 
judgment  of  the  Court  of  King's  Bench  ought  to  be  reversed. 

The  following  account  of  the  further  proceedings  in  this  case 
is  given  hy  Mr.  East,  in  a  note  to  his  Reports,  Vol.  2,  p.  11>. 

This  case  first  came  on  upon  a  demurrer  to  evidence,  on  which 
there  was  judgment  for  the  plaintiff;  tliis  court  holding,  that 
though  the  vendor  of  the  goods  miglit,  as  between  himself  and 
the  vendee,  stop  them  in  transitu  to  the  latter,  in  case  of  his 
insolvency,  not  having  paid  for  them ;  yet  that  if  the  vendee, 
having  in  his  possession  the  bill  of  lading  indorsed  in  blank  l:)y 
the  vendor,  before  such  stopping  in  transitu,  indorse  and  deliver 
it  to  a  third  person  for  a  valuable  consideration  and  without 
notice  of  the  non-payment,  the  right  of  the  vendor  to  stop  in 
transitu  is  thereljy  divested  as  against  such  hond  file  holder  of 
the  bill.  This  judgment  was  reversed  upon  a  writ  of  error  in 
the  Exchequer  Chamber,  where  it  was  considered  that  a  bill  of 
lading  was  not  a  negotiable  instrument,  the  indorsement  of 
which  passed  the  property  proprio  vigore,  like  the  indorsement 
of  a  bill  of  exchange  ;  though  to  some  purposes  it  was  assignable 
by  indorsement,  so  as  to  operate  as  a  discharge  to  the  captain 
who  made  a  delivery  hond  fide  to  the  assignee.  1  H.  Black.  357. 
The  latter  judgment  was  in  its  turn  reversed  in  the  House  of 
Lords  in  T.  33  Geo.  3,  and  a  venire  facias  de  novo  directed  to  be 
awarded  by  B.  R.  5  Term  Rep.  367,  and  2  H.  Black.  211.  The 
ground  of  that  reversal  was,  that  the  demurrer  to  evidence  ap 
peared  to  be  informal  on  the  record  MS.  The  very  elaborate 
ophiion  delivered  by  Mr.  Justice  Buller,  upon  the  principal 
question  before  the  House,  a  copy  of  which  he  afterwards  per- 
mitted me  to  take,  I  shall  here  subjoin,  as  it  contains  the  most 
comprehensive  view  of  the  whole  of  this  subject  which  is  any- 
where to  be  found.  A  venire  facias  de  novo  having  been  accord- 
ingly awarded  by  B.  R.,  a  special  verdict  was  found  upon  the 
second  trial,  containing  in  substance  the  same  facts  as  before  ;  (a) 
with  this  addition,  that  the  jury  found,  that  hy  the  custom  of  mer- 

(a)  [See  as  to  the  effect  of  this  tincling,  Seioell  v.  Burdick,  10  App.  Ca.  74.] 


LICKBARROW    V.    MASON.  1073 

chants,  hills  of  lading  for  the  delivery  of  goods  to  the  order  of  the 
shipper  or  his  assigns,  are,  after  the  shipment,  and  before  the  voy- 
age perfo7'med,  negotiable  and  transferable  by  the  shipper  s  indorse- 
ment and  delivery,  or  transmitting  of  the  same  to  any  other  person  ; 
and  that  by  such  indorse7nent  and  delivery  or  transmission  the 
property  in  such  goods  is  transferred  to  such  other  person.  And 
that  by  the  custom  of  merchants,  indorsements  of  bills  of  lading  in 
blank  may  be  filled  up  by  tlie  person  to  ivhom  they  are  so  delivered 
or  trayismitted,  u'ith  words  ordering  the  delivery  of  the  goods  to  be 
made  to  such  person :  and  according  to  the  practice  of  merchants, 
the  same,  when  filled  up,  have  the  same  operation  and  effect  as  if 
it  had  been  done  by  the  shipper.  On  this  special  verdict,  the 
court  of  B.  R.,  understanding  that  the  case  was  to  be  carried  up 
to  the  House  of  Lords,  dechned  entering  into  a  discussion  of  it ; 
merely  saying,  that  they  still  retained  the  opinion  delivered 
upon  the  former  case,  and  gave  judgment  for  the  plaintiffs.  5 
Term  liep.  683. 


LICKBARROW  AND  ANOTHER  V.  MASON  AND   OTHERS,  IN   ERROR. 
—  DOM  PEOC.  1793. 

Buller,  J.  —  Before  I  consider  what  is  the  law  arising  on  this 
case,  I  shall  endeavour  to  ascertain  what  the  case  itself  is  (a). 
It  appears  that  the  two  bills  of  lading  were  endorsed  in  blank  by 
Turing,  and  sent  so  indorsed  in  the  same  state  by  Freeman  to 
the  plaintiffs,  in  order  that  the  goods  might,  on  their  arrival  at 
Liverpool,  be  taken  possession  of,  and  sold  by  the  plaintiffs,  on 
Freeman's  account.  I  shall  first  consider  what  is  the  effect  of  a 
blank  indorsement ;  and  secondly,  I  will  examine  whether  the 
words,  "  to  be  so  sold  by  the  plaintiffs  on  Freeman's  account," 
make  any  difference  in  the  case.  As  to  the  first,  I  am  of 
opinion  that  a  blank  indorsement  has  precisely  the  same  effect 
that  an  indorsement  to  deliver  to  the  plaintiffs  woukl  have. 
In  the  case  of  bills  of  exchange,  the  effect  of  a  blank  indorse- 
ment is  too  universally  known  to  be  doubted ;  and,  therefore, 
on  that  head  I  shall  only  mention  the  case  of  Mussel  v.  Lang- 
staffe,  Dougi.  496,  where  a  man  indorsed  his  name  on  copper- 

(a)  [See   as    to    this    opinion   p^r       hum  in  Sewell  v.  Bta-dick,  10  App.  Oa. 
Field,  J.,  in  Burdick  v.  SeiveU,  10  Q.       at  p.  98.] 
B.  D.  at  p.  371,  and  per  Lord  Black- 


1074  LICKBAKUOW    V.    MASON. 

plate  checks,  made  in  the  form  of  promissory  notes,  Init  in 
blank,  ^^e.,  without  any  sum,  date,  or  time  of  payment :  and 
the  court  held,  that  the  indorsement  on  a  blank  note  is  a  letter 
of  credit  for  an  ind(;tinite  sum  ;  and  the  defendant  was  liable 
for  the  sum  afterwards  inserted  in  the  note,  whatever  it  nii<,dit 
be.  In  the  case  of  bills  of  lading,  it  has  been  admitted  at  your 
lordships'  bar,  and  was  so  in  the  Court  of  Kin<r's  lieiieli,  that  a 
blank  indorsement  has  the  same  effect  as  ;in  indorsement  tilled 
up  to  deliver  to  a  })artic'ular  persou  by  name.  In  the  case  of 
Snee  v.  Prescof,  Lord  Hardivicke  thought  that  there  was  a  dis- 
tinction between  a  l)ill  of  lading  indorsed  in  blank,  and  one  that 
was  filled  up;  and  upon  that  ground  part  of  his  decree  was 
founded.  But  that  I  conceive  to  be  a  clear  mistake.  And  it 
appears  from  the  case  of  jSavii/nac  v.  Cujf',  (of  wliicli  ease  I 
know  nothing  but  from  what  has  been  quoted  by  the  eouns(d, 
and  that  case  having  oeeurred  before  the  unf(»rtunate  year 
1780  (a),  no  further  account  can  be  obtained,)  though  Lord 
Mansfield  at  iirst  thought  that  tliere  was  a  distinction  between 
bills  of  lading  indorsed  in  blank  and  otherwise,  yet  he  after- 
wards abandoned  that  ground.  In  Solomons  v.  Ni/shch,  Mich. 
1788,  2  Term  Rep.  674,  the  bill  of  lading  was  to  order  or  as- 
signs, and  the  indorsement  in  blank ;  but  the  court  lield  it  to 
be  clear  that  the  property  passed.  He  who  delivers  a  bill  of  lad- 
ing indorsed  in  blank  to  another,  not  only  puts  it  in  the  power 
of  the  person  to  whom  it  is  delivered,  ])ut  gives  him  author- 
ity to  fill  it  up  as  he  pleases ;  and  it  has  the  same  effect  as  if  it 
were  filled  up  with  an  order  to  deliver  to  him.  The  next  point 
to  be  considered  is,  what  difference  do  the  words  "to  be  sold 
by  the  plaintiffs  on  Freeman's  aecount "  make  in  the  present 
case  ?  It  has  been  argued  that  they  prove  the  plaintiffs  to  be 
factors  only.  But  it  is  to  be  observed  that  these  words  are  not 
found  in  the  bill  of  lading  itself :  aiul,  therefore,  they  cannot  alter 
the  nature  and  construction  of  it.  I  say  they  were  not  in  the 
bill  of  lading  itself ;  for  it  is  expressly  stated  that  the  bill  of 
lading  was  sent  by  Freeman  in  the  same  state  in  which  it  was 
received,  and  in  that  there  is  no  restriction  or  qualification 
whatever ;  but  it  appeared  by  some  other  evidence  — I  suppose 
by  some  letter  of  advice,  that  the  goods  were  so  sent,  to  be 
sold  by  the  plaintiffs  on  Freeman's  account.     Supposing  that 

(a)  Lord  MansfiehVs  papers  were      in  the  riots  of  that  period.     Solomom 
then  burnt,  together  with  his  house,       v.  Xysseii. 


LICKBARKOW    V.    MASON.  1075 

the  plaintiffs  are  to  be  considered  as  factors,  yet  if  the  bill  of 
lading,  as  I  shall  contend  presently,  passes  the  legal  property 
in  the  goods,  the  circumstance  of  the  plaintiffs  being  liable  to 
render  an  account  to  Freeman  for  these  goods  afterwards,  will 
not  put  Turing  in  a  better  condition  in  this  case ;  for  a  factor 
has  not  only  a  right  to  keep  goods  till  he  is  paid  all  that  he  has 
advanced  or  expended  on  account  of  the  particular  goods,  but 
also  till  he  is  paid  the  balance  of  his  general  account  (a).  The 
truth  of  the  case,  as  I  consider  it,  is  that  Freeman  transferred 
the  legal  property  of  the  goods  to  the  plaintiffs,  who  were  to 
soil  them,  and  pay  themselves  the  5201.  advanced  in  bills  out  of 
the  produce,  and  to  be  accountable  to  Freeman  for  the  re- 
mainder, if  there  were  any.  But  if  the  goods  had  not  sold  for 
so  much  as  510/.,  Freeman  would  still  have  remained  debtor 
to  the  plaintiffs  for  the  difference ;  and  so  far  only  they  were 
sold  on  Freeman's  account.  But  I  hold  that  a  factor  who  has 
the  legal  property  in  goods  can  never  have  that  property  taken 
from  him,  till  he  is  paid  the  utmost  farthing  which  is  due  to 
him.     Kruger  v.  Wilcocks,  Ambl.  252. 

This  brings  me  to  the  two  great  questions  in  the  cause,  Avhicli 
are  undoubtedly  of  as  much  importance  to  trade  as  any  ques- 
tions which  ever  can  arise.  The  first  is,  whether  at  law  the 
property  of  goods  at  sea  passes  by  the  indorsement  of  a  bill  of 
lading?  The  second,  whether  the  defendant,  who  stands  in 
the  place  of  the  original  owner,  had  a  right  to  stop  the  goods 
in  transitu?  And  as  to  the  first,  every  authority  which  can 
be  adduced  from  the  earliest  period  of  time  down  to  the  present 
hour,  agree  that  at  law  the  property  does  pass  as  absolutely  and 
as  effectually  as  if  the  goods  had  been  actually  delivered  into 
the  hands  of  the  consignee  (i).  In  1690  it  was  so  decided  in 
the  case  of  Wiseman  v.  Vandeputt^  2  Vern,  203.  In  1697,  the 
court  determined  again  in  Evans  v.  Martlett  that  the  property 
passes  by  the  bill  of  lading.  That  case  is  reported  in  1  Lord 
Raym.  271,  and  in  12  Mod.  156  ;  and  both  books  agree  in  the 
points  decided.  Lord-  Raymond  states  it  to  be,  that  if  goods 
by  a  bill  of  lading  are  consigned  to  A.,  A.  is  the  owner,  and 
must  bring  the  action  :  but  if  the  bill  be  special  to  be  delivered 

(a)  Ace.  Houghton  v.  Mattheios,  3  B.  (6)  [See  as  to  this  Burdick  v.  Sewell, 

&  P.  488 ;  Mann  v.  Shifner,  2  East,  529 ;  10  App.  Ca.  74.]      Wiseman  v.  Vande- 

HudsonY.   Grainger,  5  B.  &  Ad.  27;  putt. 
DrinJacater  V.  Goodwin,  Cowp.  251. 


1()7<;  LICKBAIIKOW    V.    MASON. 

to  A.,  to  the  use  of  B.,  B.  ought  to  bring  the  action  :  hut  if  the 
])ill  l)e  general  to  A.,  and  the  invoice  only  shows  that  they  are  on 
account  of  B.  (which  I  take  to  be  the  present  case),  A.  ought 
always  to  bring  the  action ;  for  the  property  is  in  liini,  and  B. 
has  only  a  trust.  And  Holt,  C.  J.,  says  the  consignee  of  a  l)ill 
of  lading  has  such  a  property  as  that  he  may  assign  it  over ; 
and  Shower  said  it  had  been  so  adjudged  in  the  Exchequer. 
In  12  Mod.  it  is  said  that  the  court  held  that  the  invoice  signi- 
fied nothing;  but  that  the  consignment  in  a  bill  of  hiding  gives 
the  property,  except  where  it  is  for  the  account  of  another ; 
that  is,  where  on  the  face  of  the  bill  it  imports  to  be  for  another. 
In  Wright  v.  Camjjbell,  in  1707  (4  Burr.  204(5),  Lord  Mansfield 
said,  "  If  the  goods  are  bond  fide  sold  by  the  factor  at  sea  (as 
they  may  be  Avhere  no  other  delivery  can  be  given)  it  will  be 
good  notwithstanding  the  stat.  21  Jac.  1.  The  vendee  shall 
hold  them  by  virtue  of  the  bill  of  sale,  though  no  actual  pos- 
session be  delivered ;  and  the  owner  can  never  dispute  with  the 
vendee,  because  the  goods  were  sold  />oii<i  tide,  and  l)y  the 
owner's  OAvn  authority."  His  lordshij)  added  (though  tliat  is 
not  stated  in  the  printed  re})ort)  that  tlie  doctrine  in  Lord 
Eaymond  was  right,  that  the  property  of  goods  at  sea  was 
transferable.  In  Fearon  v.  B<>/rrrs  (a),  in  1753,  Lord  Chief 
Justice  Lee  held  that  a  bill  of  lading  transferred  the  property, 
and  a  right  to  assign  that  property  by  indorsement ;  but  that 
the  captain  was  discharged  by  a  delivery  under  either  bill.  In 
iStiee  V.  Prescot,  in  1743  (1  Atk.  245),  Lord  Hardivicke  says, 
"  Where  a  factor,  hy  the  order  of  his  principal,  buys  goods  with 
his  own  money,  and  makes  the  bill  of  lading  absolutely  in  the 
principal's  name,  to  have  the  goods  delivered  to  the  principal, 
in  such  case  the  factor  cannot  countermand  the  bill  of  lading ; 
but  it  passes  the  property  of  the  goods  fully  and  irrevocably  to 
the  principal."  Then  he  distinguishes  the  case  of  blank  in- 
dorsement, in  which  he  was  clearly  wrong.  He  admits,  too, 
that  if  upon  a  bill  of  lading  between  merchants  residing  in  dif- 
ferent countries,  the  goods  be  shipped  and  consigned  to  the 
principal  expressly  in  the  body  of  the  bill  of  lading,  that  vests 
the  property  in  the  consignee.  In  Cakhvell  v.  Ball,  in  1786, 
(1  Term  Rep.  205,)  the  court  held  that  the  indorsement  of  the 
bill  of  lading  was  an  immediate  transfer  of  the  legal  interest  in 

(a)  [Accord.     The  Tigress,  Brown      Aclm.  97.     See,  however,  Ghjn  v.  E.  & 
&  Lushington's  Adm.  Ca.  38;  32  L.  J.       W.  I.  Dock  Co.,  7  App.  Ca.  591.] 


LICKBARROW    V.    MASON.  1077 

the  cargo.  In  Hihhert  v.  Carter^  in  1787,  (1  Term  Rep.  745,) 
the  court  held  again  that  the  indorsement  and  delivery  of  the 
bill  of  lading  to  a  creditor  primd  facie,  conveyed  the  whole 
property  in  the  goods  from  the  time  of  its  delivery.  The  case 
of  Godfrey  v.  Fiirzo,  3  P.  Wms.  185,  was  quoted  on  behalf  of 
the  defendant.  A  merchant  at  Bilboa  sent  goods  from  thence 
to  B.,  a  merchant  in  London,  for  the  use  of  B.,  and  drew  bills 
on  B.  for  the  mone}'.  The  goods  arrived  in  London,  which  B. 
received,  but  did  not  pay  the  money,  and  died  insolvent.  The 
merchant  beyond  sea  brought  his  bill  against  the  executors  of 
the  merchant  in  London,  praying  that  the  goods  might  be  ac- 
counted for  to  him,  and  insisted  that  he  had  a  lien  on  them  till 
paid.  Lord  Chancellor  says,  —  "  When  a  merchant  beyond  sea 
consigns  goods  to  a  merchant  in  London  on  account  of  the 
latter,  and  draws  bills  on  him  for  such  goods,  though  the  money 
be  not  paid,  yet  the  property  of  the  goods  vests  in  the  mer- 
chant in  London,  wdio  is  crechted  for  them,  and  consequently 
they  are  liable  to  his  debts.  But  where  a  merchant  beyond  sea 
consigns  goods  to  a  factor  in  London,  who  receives  them,  the 
factor  in  this  case,  being  only  a  servant  or  agent  for  the  mer- 
chant beyond  sea,  can  have  no  property  in  such  goods,  neither 
will  they  be  affected  by  his  bankruptcy."  The  whole  of  this 
case  is  clear  law;  but  it  makes  for  the  plaintiffs  and  not  the 
defendants.  The  first  point  is  this  very  case ;  for  the  bill  of 
lading  here  is  generally  to  the  plaintiffs,  and  therefore  on  their 
account ;  and  in  such  case,  though  the  money  be  not  paid,  the 
j:)roperty  vests  in  the  consignee.  And  this  is  so  laid  down 
without  regard  to  the  question,  whether  the  goods  were  re- 
ceived by  the  consignee  or  not.  The  next  point  there  stated 
is,  what  is  the  law  in  the  case  of  a  pure  factor,  without  any 
demand  of  his  own?  Lord  King  says  he  would  have  no  prop- 
erty. This  expression  is  used  as  between  consignor  and  con- 
signee, and  obviously  means  no  more  than  that,  in  the  case  put, 
the  consignor  may  reclaim  the  property  from  the  consignee. 
The  reason  given  by  Lord  King  is,  because  in  this  case  the 
factor  is  only  a  servant  or  agent  for  the  merchant  beyond  sea. 
I  agree,  if  he  be  merely  a  servant  or  agent,  that  part  of  the 
case  is  also  good  law,  and  the  principal  may  retain  the  property. 
But  then  it  remains  to  be  proved  that  a  man  who  is  in  advance, 
or  under  acceptances  on  account  of  the  goods,  is  simply  and 
merely  a  servant  or  agent;  for  which  no  authority  has  been, 


1UT8  LicKbAi:i:n\\    v.  mason. 

or,  us  1  Ix'lit'Vi',  i;iii  lu'  itrodiucd.  Ileif  tlic  bills  wtMe  drawn 
by  PVeein;iii  upon  tin-  plaiiitilTs  upon  tlu'  s;iiiu'  day,  and  at  tlic 
same  time,  as  he  sent  the  ;;i>ods  to  them  ;  and  thi-refore  this 
must,  by  fair  and  neiessary  intendment,  l)e  taken  to  Ixj  one 
entire  transaetion ;  ami  that  the  bills  were  drawn  on  aeeount 
of  the  <^n)ods,  uidess  the  eontrary  appear. — So  far  froni  the 
(contrary  appearini;  liere,  wiien  it  was  thought  proper  to  allege 
on  this  <lemurrer  that  the  prire  of  the  i^oods  was  not  paid,  it  is 
expressly  so  stated  ;  for  tiie  demurn-r  says,  that  the  priee  of 
the  <^oods  is  now  du»'  t(»  Tiirini,'  and  Son.  Hut  it  iinds  that  the 
other  bills  were  afterwards  paid  by  iIh'  plaintitTs;  and  conse- 
quently tluy  iiavr  |iaid  lor  the  p)ods  in  question.  As  between 
the  piincij>al  and  mere  factor,  who  has  neither  advanced  nor 
en^a<^ed  in  anylhin^^  for  his  principal,  the  principal  has  a  rij,d>t 
at  all  times  to  take  Iraek  his  goods  at  will :  whether  they  1x5 
actually  in  the  factor's  possession,  or  only  on  their  passaj^e, 
makes  no  dilTerence  ;  the  principal  may  countermand  his  oriler: 
and  tlioui^h  the  property  remain  in  the  factor  till  such  counter- 
mand, yet  from  that  monu-nt  the  property  revest8  in  the  prin- 
ci[)al,  and  he  may  maintain  trorer.  Hut  in  the  present  case  the 
plaintitTs  are  not  that  mere  ai^ent  or  servant  ;  they  have  ad- 
vanced .")1<I/.,  on  the  credit  of  those  j^oods,  which  at  a  rising 
market  were  worth  only  .").")"/. ;  and  they  have  besides,  as  I 
conceive,  the  legal  property  in  the  goods  under  the  bill  of 
lading.  Hut  it  was  contended  at  the  bar,  that  the  proi)erty 
never  passed  out  of  Turing;  and  to  prove  it.  Hob.  41  was 
cited.  In  answer  to  this  I  must  beg  leave  to  say,  that  the 
position  in  Llobart  does  not  apjjly  ;  because  there  no  day  of 
payment  was  given;  it  was  a  bargain  for  ready  money,  but 
here  a  month  was  given  for  payment.  And  in  Xoy's  Maxims, 
87,  this  is  laid  down :  "  If  a  man  do  agree  for  a  price  of  wares, 
he  may  not  carry  them  away  before  he  hath  paid  for  them,  if  lie 
have  not  a  day  expressly  given  to  him  to  pay  for  them."  Thorpe 
V.  Thorpe,  Rep.  temp.  Holt,  90,  and  Brice  v.  James,  Rep.  temp. 
Lord  Mansfield,  S.  P.  So  Dy.  30  and  76.  And  in  Shep.  Touch. 
222,  it  is  laid  down,  that  "  If  one  sell  me  a  horse,  or  anything 
for  money,  or  any  other  valuable  consideration,  and  the  same 
thing  is  to  be  delivered  to  me  at  a  day  certain,  and  by  our 
agreement  a  day  is  set  for  the  payment  of  the  money,  it  is  a 
good  bargain  and  sale  to  alter  the  property  thereof ;  and  I  may 
have  an  action  for  the  thing,  and  the  seller  for  his  money." 


LICKBARROW   V.   MASON.  1079 

Tlius  stand  the  authorities  on  the  point  of  legal  property ;  and 
from  hence  it  appears  that  for  upwards  of  100  years  past  it  has 
been  the  universal  doctrine  of  Westminster  Hall,  that  by  a 
bill  of  lading,  and  by  the  assignmejit  of  it,  the  legal  property 
does  pass.  And,  as  I  conceive,  there  is  no  judgment,  nor  even 
a  dictum,  if  properly  understood,  which  impeaches  this  long 
string  of  cases.  On  the  contrary,  if  any  argument  can  be 
drawn  by  analogy  from  older  cases  on  the  vesting  of  property, 
they  all  tend  to  the  same  conclusion.  If  these  cases  be  law, 
and  if  the  legal  property  be  vested  in  the  plaintiffs,  that,  as  it 
seems  to  me,  puts  a  total  end  to  the  present  case ;  for  then  it 
will  be  incumbent  on  the  defendants  to  show  that  they  have 
superior  equity  which  bears  down  the  letter  of  the  law ;  and 
which  entitles  them  to  retain  the  goods  against  the  legal  right 
of  the  plaintiffs,  or  tliey  have  no  case  at  all.  I  find  myself 
justified  in  saying  that  the  legal  title,  if  in  the  plaintiffs,  must 
decide  this  cause  by  the  very  words  of  the  judgment  now  ap- 
pealed against ;  for  the  noble  lord  who  pronounced  that  judg- 
ment, emphatically  observed  in  it,  "that  the  plaintiffs  claim 
under  Freeman  ;  but  though  they  derive  a  title  under  him,  they 
do  not  represent  him,  so  as  to  be  answerable  for  his  engage- 
ments :  nor  are  they  affected  by  any  notice  of  those  circum- 
stances which  would  bar  the  claims  of  him  or  his  assignees." 
This  doctrine,  to  wliicli  I  fully  subscribe,  seems  to  me  to  be  a 
clear  answer  to  any  supposed  lien  which  Turing  may  have 
on  the  goods  in  question  for  the  original  price  of  them. 

But  the  second  question  made  in  the  case  is,  that  hoAvever 
the  legal  property  be  decided,  the  defendants,  who  stand  in  the 
place  of  the  original  owner,  had  a  right  to  stop  the  goods  in 
transitu^  and  have  a  lien  for  the  original  price  of  them.  Before 
I  consider  the  authorities  applicable  to  this  part  of  the  case, 
I  will  beg  leave  to  make  a  few  observations  on  the  right  of 
stopping  goods  in  tramsitu.,  and  on  the  nature  and  principle  of 
liens.  1st,  Neither  of  them  are  founded  on  property ;  but  they 
necessarily  suppose  the  property  to  be  in  some  other  person, 
and  not  in  him  who  sets  up  either  of  these  rights  (a).  They 
are  qualified  lights,  which  in  given  cases  may  be  exercised  over 
the  property  of  another :  and  it  is  a  contradiction  in  terms  to 
say  a  man  has  a  lien  upon  his  own  goods,  or  right  to  stop  his 

(«)  See  the  distinction  drawn  by  session  and  tliat  of  property,  post  in 
Bayley,  J.,  between  the  right  of  pos-      notis. 


1080  I.l('KllAi:U<)\\      V.    MA.SnN. 

own  (^()(»(l>  ///  triuiKitH.  It'  ihu  ^oods  l)c  his,  he  has  -a  \'\y^\\\  lo 
till'  possession  of  tht'iii  whether  tliey  Ik*  in  frnnnifit,  or  not:  ho 
hiis  ii  ri^ht  to  sell  «)r  tlispose  of  tlieni  ;is  he  pU-asfs,  withont  the 
option  of  any  otlier  person  :  hut  he  who  has  a  lien  only  on 
j^ootls,  has  no  rij^ht  so  to  do  ;  he  can  only  retain  them  till 
the  orij^inal  i)riee  Ik'  i)ai<I :  and  therefore  if  ^'oods  are  sidd  for 
oOO/.,  and  l)y  a  ehanj^e  of  the  market,  liefore  they  are  delivered, 
they  beeome  next  day  worth  1000/.,  tile  vendor  can  only  re- 
tain tlhin  till  the  500/.  l)e  paid,  unless  the  iKir^iin  I>e  abs<dntely 
res(;inded  hy  the  vendee's  refnsinjT  to  pay  the  500/. —  -ndly. 
Liens  at  law  exist  oidy  in  cases  where  the  party  entith'd  to 
liuiM  has  the  possession  of  the  j^^oods  ;  and  if  he  once  part  with 
the  possession  after  the  lien  attaches,  the  lien  is  ^f>nt'  (<i). 
'3rdly,  T/w  ri</ht  of  xtoppin;/  In  tniuMitu  inj'ounileil  only  on  fijnituftU 
principlex^  which  hare  been  adopteii  in  conrtn  of  law ;  and  as  far 
as  they  have  l)een  adoptcil,  I  a^^ree  they  will  himl  at  law  ns 
well  as  in  etjuity.  So  late  as  the  year  l^J'JO,  this  ri^'ht,  <»r 
privih't^e,  or  whali'ver  it  may  Ix'  ealletl,  w.is  unknown  to  the 
law.  'I'he  tirst  of  these  propositions  is  self-evident,  and  re- 
(juires  no  arj(um»'nt  to  prove  it.  As  to  the  second,  which 
respects  liens,  it  is  known  and  unijuestionahle  law,  that  if  a 
carrier,  a  farrier,  a  tailor,  or  an  inn-keeper,  deliver  up  the 
jjoods,  his  lieu  is  <;oue.  So  also  is  the  case  of  a  factor  as  to 
the  particular  j^'oods  :  hut,  hy  the  jjeueral  usai^e  in  trade,  he 
may  retain  for  the  balance  of  his  account  all  t^oods  in  his 
hands,  without  rt'^ard  to  tlu^  tinn;  when  or  on  what  account  he 
received  them.  In  Snee  v.  Preacot^  Lord  Hanhvicke  says  tliat 
which  not  only  applies  to  the  case  of  liens,  but  to  the  right  of 
stopping  goods  in  transitu  under  circumstances  similar  to  the 
case  in  judgment :  for  he  says,  where  goods  have  been  nego- 
tiated, and  sold  again,  there  it  would  be  mischievous  to  say 
that  the  venilor  ov  factor  should  have  a  lien  upon  the  goods  for 
the  price  ;  for  then  no  dealer  would  know  when  lie  purchased 
goods  safely.  So  in  Lempriere  v.  Paxley^  (2  Term  R.  485,) 
the  court  said  it  would  be  a  great  inconvenience  to  commerce 
if  it  were  to  be  laid  down  as  law,  that  a  man  could  never  take 
up  money  upon  the  credit  of  goods  consigned  till  they  actually 
arrived  in  port.  There  are  other  cases  which  in  my  judgment 
apply  as  strongly  against  the  right  of  seizing  in  transitu  to  the 
extent  contended  for  by  the  defendants  :  but  before  I  go  into 
(a)  See  Levy  v.  Barnard,  8  Taunt.  149.     See  post,  in  notct. 


LICKBAREOW   V.    MASON.  1081 

them,  with  your  lordships'  permission,  I  will  state  shortly  the 
facts  of  the  case  of  Snee  v.  Prescot,  with  a  few  more  observa- 
tions upon  it.  The  doctrine  of  stopping  in  transitu  owes  its 
origin  to  courts  of  equity ;  and  it  is  very  material  to  observe 
that  in  that  case,  as  well  as  many  others  which  have  followed 
it  at  law,  the  question  is  not,  as  the  counsel  for  the  defendants 
would  make  it,  whether  the  property  vested  under  the  bill  of 
lading  ?  for  that  was  considered  as  being  clear :  but  whether, 
on  the  insolvency  of  the  consignee,  who  had  not  paid  for  the 
goods,  the  consignor  could  countermand  the  consignment?  or, 
in  other  words,  divest  the  property  which  was  vested  in  the 
consignee?  Snee  and  Baxter^  assignees  of  John  Toilet,  v, 
Prescot  and  others,  1  Atk.  245.  Toilet,  a  merchant  in  London^ 
shipped  to  Ragueneau  and  Co.,  his  factors  at  Leghorn^  serges 
to  sell,  and  to  buy  double  the  value  in  silks ;  for  which  the 
factors  were  to  pay  half  in  ready  money  of  their  own,  which 
Toilet  would  repay  by  bills  drawn  on  him.  The  silks  were 
bought  accordingly,  and  shipped  on  board  Dawson's  ship, 
marked  T. ;  Dawson  signed  three  bills  of  lading,  to  deliver  at 
London  to  factors'  consignors,  or  their  order.  The  factors  in- 
dorsed one  bill  of  lading  in  blank,  and  sent  it  to  Toilet,  who 
filled  up  the  same  and  pawned  it.  The  bills  drawn  by  the 
factors  on  Toilet  were  not  paid,  and  Toilet  became  a  bankrupt. 
The  factors  sent  another  bill  of  lading,  properly  indorsed,  to 
Prescot,  who  offered  to  pay  the  pawnee,  but  he  refused  to 
deliver  up  the  bill  of  lading ;  on  which  Prescot  got  possession 
of  the  goods  from  Dawson,  under  the  last  bill  of  lading.  The 
assignees  of  Toilet  brought  the  bill  to  redeem  by  paying  the 
pawnee  out  of  the  money  arising  by  sale,  and  to  have  the  rest 
of  the  produce  paid  to  them :  and  that  the  factors,  although 
in  possession  of  the  goods,  should  be  considered  as  general 
creditors  only,  and  be  driven  to  come  in  under  the  commission. 
Decreed,  1st,  That  the  factors  should  be  paid;  2Dd,  the  pawnees; 
and  3rd,  the  surplus  to  the  assignees.  The  decree  was  just  and 
right  in  saying  that  the  consignor,  who  never  had  been  paid 
for  the  goods,  and  the  pawnees,  who  had  advanced  money  upon 
the  goods,  should  both  be  paid  out  of  the  goods  before  the  con- 
signees or  his  assignees  should  derive  any  benefit  from  them. 
That  was  the  whole  of  the  decree ;  and  if  the  circumstance 
of  the  consignor's  interest  being  first  provided  for  be  thought 
to  have  any  weight,  I   answer,  1st,  That  such  provision  was 


lOSj  LU'KIJ.VUUOW    V.    MASON. 

lomided  on  \vli;it  is  now  inliiiiltrd  to  Ixj  an  iippJirent  nu.'^liike 
ot  tlii'  hiw,  in  snj»()osin^'  that  tlu'iv  nv.ih  a  ditTfiLMue  lH-t\v«*t'n  a 
fnll  and  a  hlank  indorsement.  Lord  liirdwirke  considered  the 
k'l^'al  property  in  that  rase  to  remain  in  the  eonsij^nor,  and, 
therefore,  j^'ave  him  the  preferenee.  -ndly,  Tliat  whatever 
nii;,d»t  he  the  hiw,  the  mere  fact  of  the  lonsij^nor's  liein^  in 
possession  was  a  sntlieient  reason  for  a  eourt  «»f  etjuity  to  say, 
\\v  will  not  take  the  possession  from  you  till  you  have  l)een 
paid  what  is  (hie  to  you  for  the  ;,'oods.  I^onl  ILirdwirke  ex- 
pressly saiil  —  "This  court  will  not  say,  as  the  factors  have 
re-sei/cd  thi*  ^'oods,  thit  they  shall  U*  taken  out  of  tln-ir  hands 
till  payment  of  the  iialf-pri»e  whicii  they  have  laid  down  upon 
them.  lie  who  tteeks  equil}/  inunt  do  eijititt/ :  and,  if  he  will  not, 
he  must  not  expect  relief  from  a  court  of  «M|uity.  It  is  in  vain 
for  a  man  to  say  in  that  court,  I  have  the  law  with  me,  unless 
he  will  show  that  he  lias  equity  with  him  also.  If  he  mean  to 
rtdy  on  the  law  of  his  case,  he  must  go  to  a  court  of  law;  and 
so  a  court  of  e(|uity  will  always  tell  him  under  those  lircum- 
stanccs."  Tin*  <ase  of  .S'/»»r  v.  Presrot  is  miscrahly  reportitl 
in  the  printed  hook  :  and  it  was  the  misfortune  of  Lord  /firJ- 
ici(-/ct\  and  of  the  puhlic  in  general,  to  have  many  of  his  deter- 
minations puhlishcd  in  an  incorrect  and  slovenly  way:  and, 
perhaps,  even  he  himself,  hy  l)eing  very  <liffuse,  has  laid  a  foun- 
dation for  douhts  which  otherwise  would  never  have  cxisteil. 
I  have  (pioted  that  case  from  a  MS.  note  taken,  as  I  collect, 
by  Mr.  John  Cox,  wlu)  was  counsel  in  the  cause:  and  it  seems 
to  me  that,  on  taking  the  whole  of  the  case  together,  it  is  appar- 
ent that,  whatever  might  have  been  said  on  the  law  of  the  case 
in  a  most  elaborate  opinion.  Lord  ILtriln'icke  decided  on  the 
equity  alone,  arising  (Uit  of  all  the  particular  circumstances  of 
it,  without  meaning  to  settle  the  principles  of  law  on  which  the 
present  case  dei)ends.  In  one  part  of  his  judgment  he  says 
that,  in  strictness  of  law,  the  property  vested  in  Toilet  at  the 
time  of  the  purchase :  *••  but,  however  that  may  be,"  says  he, 
"•  this  court  will  not  compel  the  factors  to  deliver  the  goods 
without  being  disbursed  what  they  have  laid  out."  He  begins 
by  saying,  "  the  demand  is  as  harsh  as  can  possibly  come  into  a 
court  of  equity."  And  in  another  part  of  his  judgment  he  .sa3s, 
"  Suppose  the  legal  property  in  these  goods  was  vested  in  the 
bankrupt,  and  that  the  assignees  had  recovered,  yet  this  court 
would   not  suffer  them  to  take   out  execution  for  the  whole 


LICKBAEEOW    V.    MASON.  1083 

value,  but  would  oblige  them  to  account."  But  further,  as  to 
the  right  of  seizing  or  stopping  the  goods  in  transitu^  I  hold 
that  no  man,  who  has  not  equity  on  his  side  can  have  that 
right.  I  Avill  say  with  confidence,  that  no  case  or  authority,  till 
the  present  judgment,  can  be  produced  to  show  that  he  has. 
But  on  the  other  hand,  in  a  very  able  judgment  delivered  by 
my  brother  Ashurst,  in  the  case  of  Lempriere  v.  Pasley^  in  1788, 
2  Term  Rep.  485,  he  laid  it  down  as  a  clear  principle,  that,  as 
between  a  person  who  has  an  equitable  lien,  and  a  third  person 
who  purchases  a  thing  for  a  valuable  consideration  and  without 
notice,  the  prior  equitable  lien  shall  not  overreach  the  title  of 
the  vendee.  This  is  founded  on  plain  and  obvious  reason  :  for 
he  who  has  bought  a  thing  for  a  fair  and  valuable  consideration, 
and  without  notice  of  any  right  or  claim  by  any  other  person, 
instead  of  having  equity  against  him  has  equity  in  his  favour ; 
and  if  he  have  law  and  equity  both  with  him  he  cannot  be  beat 
by  a  man  who  has  equal  equity  only.  Again,  in  a  very  solemn 
opinion,  delivered  in  this  house  by  the  learned  and  respectable 
judge  (a),  who  has  often  had  the  honour  of  delivering  the  sen- 
timents of  the  judges  to  your  lordships,  when  you  are  pleased 
to  require  it,  so  lately  as  the  14th  of  May,  1790,  in  the  case  of 
Kinloch  v.  Craig,  3  Terra  Rep.  787,  it  was  laid  down  that  the 
right  of  stopping  goods  in  transitu  never  occur  but  as  between 
vendor  and  vendee ;  for  that  he  relied  on  the  case  of  Wright  v. 
Campbell,  4  Burr.  2050.  Nothing  remains  in  order  to  make 
that  case  a  direct  and  conclusive  authority  for  the  present,  but 
to  show  that  it  is  not  the  case  of  vendor  and  vendee.  The 
terms  vendor  and  vendee  necessarily  mean  the  two  parties  to  a 
particular  contract :  those  who  deal  together,  and  between 
whom  there  is  privity  in  the  disposition  of  the  things  about 
which  we  are  talking.  If  A.  sell  a  horse  to  B.,  and  B.  after- 
wards sell  him  to  C,  and  C.  to  D.,  and  so  on  through  the  alpha- 
bet, each  man  who  buys  the  horse  is  at  the  time  of  buying  him 
a  vendee  ;  but  it  would  be  strange  to  speak  of  A.  and  D. 
together  as  vendor  and  vendee,  for  A.  never  sold  to  D.,  nor  did 
D.  ever  buy  of  A.  These  terms  are  correlatives,  and  never 
have  been  applied,  nor  ever  can  be  applied,  in  any  other  sense 
than  to  the  persons  who  bought  and  sold  to  each  other.  The 
defendants,  or  Turing,  in  whose  behalf  and  under  whose  name 

(rt)  Exjre,  then  Lord  C  B. 


10H4  LirKMAKirMW    v.    masiin. 

anil  iuithority  tlir\  li,i\r  .n  ittl,  never  snM  tlu'st-  j^«m.iI-.  in  iln- 
pliiiMtin's  ;  the  pliiiiititTs  ueviT  were  thf  veiMU'cs  of  fither  of 
them.  Nfitht  r  do  ilic  i)hiinti!Ys  (if  I  may  Imj  jx;nuitteil  to  re- 
ptat  a^aiii  tin*  fon-iMc  words  of  the  iu»hlt'  jmlj^t*  who  j>rf>- 
iiouiulmI  tht-  judgment  iii  <iiU'sti(»ii)  ri'pri'st'iit  Frromaii  so  as  to 
he  aiiswerahle  for  his  eiij^aj^einents,  or  staiul  affetted  by  any 
iiotite  of  those  eircumstaiu'es  whirli  wouhl  har  the  (hiim  of 
Freeman  «»r  his  assitjnees.  These  reasons,  which  I  e(»idd  not 
have  expressed  witli  etpial  eh-arness,  without  reiurriug  to  the 
words  of  the  two  great  authorities  hy  whom  tliev  were  used, 
and  to  wljonj  I  always  Imw  with  reverence,  in  my  hund)le  judg- 
ment put  an  end  to  all  (piestions  al)out  the  right  of  seizing  in 
fninsifii.  Two  other  lases  were  mentioned  at  the  Uir  wliich 
deserve  some  attention.  One  is  the  case  of  tlie  assignees  of 
liiin/hiiU  V.  Howaril  (^i),  l)efore  Lord  Miiuxthhl  at  Giiilithall,  in 
175'.);  wliere  the  only  point  decided  l>y  Lord  }[itn»fitl>l  was, 
that  if  a  consignee  iHscome  a  hankrupt,  and  no  p.irt  of  the  juice 
of  the  gojtds  Im'  pai<l,  the  consignor  n>ay  seize  tlu*  g«»ods  K'fore 
they  come  to  the  hands  of  the  consignee  or  his  assignees.  This 
was  most  clearly  right  ;  hut  it  does  not  apply  to  the  present 
case  ;  for  when  he  made  use  of  the  w«»rd  a.ssignees,  lie  un- 
douhtedly  meant  a.'^signees  under  a  commission  of  bankruptcy, 
like  those  who  were  then  l)efore  him,  and  not  pei-sons  to  whom 
the  consignee  sold  the  goods  ;  for  in  that  case  it  is  stated  that 
no  part  of  the  price  of  tin*  goods  was  paid.  The  whole  cause 
turns  upon  this  point.  In  that  case  no  part  of  the  price  of  the 
goods  was  paid,  and  therefore  the  original  owner  might  seize 
the  goods.  But  in  this  ease  the  plaintiffs  had  paid  the  price  of 
the  goods,  or  were  under  acceptances  for  them,  which  is  the 
same  thing ;  and  therefore  the  original  owner  could  not  seize 
them  again.  But  the  note  of  that  case  says.  Lord  Mangfiehl 
added,  ''and  this  was  ruled,  not  upon  principles  of  equity  oidy, 
but  the  laws  oi  property."  Do  these  words  fairly  import  that 
the  property  was  not  altered  by  a  ])ill  of  lading,  or  by  the  in- 
dorsement of  it?  That  the  liberty  of  stopping  goods  in  transitu 
is  originally  founded  on  principles  of  equity,  and  that  it  has,  in 
the  case  before  him,  been  adopted  by  the  law,  and  that  it  does 
att'ect  property  are  all  true  :  and  that  is  all  that  the  words  mean  ; 
not  that  the  property  did  not  pass  by  the  bill  of  lading.     The 

(a)  1  II.  Bla.  ;'.<;.-..  n. 


LICKBARROW    V.    MASON.  1085 

commercial  law  of  this  country  was  never  better  understood, 
or  more  correctly  administered,  than  by  that  great  man.  It 
was  under  his  fostering  hand  that  the  trade  and  the  commer- 
cial law  of  this  country  grew  to  its  present  amazing  size  :  and 
when  we  find  him  in  other  instances  adopting  the  language  and 
opinion  of  Lord  Chief  Justice  Holt,  and  saying,  that  since  the 
cases  before  him  it  had  always  been  held,  that  the  delivery  of  a 
bill  of  lading  transferred  the  property  at  law,  and  in  the  year 
176T  deciding  that  very  point,  it  does  seem  to  me  to  be  abso- 
lutely impossible  to  make  a  doubt  of  what  was  his  opinion  and 
meaning.  All  his  determinations  on  the  subject  are  uniform. 
Even  the  case  of  Savignac  v.  Cuff  («),  of  which  we  have  no  ac- 
count besides  the  loose  and  inaccurate  note  produced  at  the 
bar,  as  I  understand  it,  goes  upon  the  same  principle.  The 
note  states  that  the  counsel  for  the  plaintiff  relied  on  the  prop- 
erty passing  by  the  bill  of  lading ;  to  which  Lord  Mansfield 
answered,  the  plaintiff  had  lost  his  lien,  he  standing  in  the 
place  of  the  consignee.  Lord  Mansfield  did  not  answer  mer- 
cantile questions  so  ;  which,  as  stated,  was  no  answer  to  the 
question  made.  But  I  think  enough  appears  on  that  case  to 
show  the  grounds  of  the  decision,  to  make  it  consistent  with 
the  case  of  Wright  v.  Campbell,  and  to  prove  it  a  material 
authority  for  the  plaintiffs  in  this  case.  I  collect  from  it  tliat 
the  plaintiff  had  notice  by  the  letter  of  advice,  that  Lingham 
had  not  paid  for  the  goods ;  and  if  so,  then,  according  to  the 
case  of  Wright  v.  Gamphell,  he  could  only  stand  in  Lingham's 
place.  But  the  necessity  of  recurring  to  the  question  of  notice 
strongly  proves,  that,  if  there  had  been  no  such  notice,  the 
plaintiff,  who  was  the  assignee  of  Lingham  the  consignee, 
would  not  have  stood  m  Lingham's  place,  and  the  consignor 
could  not  have  seized  the  goods  in  transitu :  but  that,  having 
seized  them,  the  plaintiff  would  have  been  entitled  to  recover 
the  full  value  of  them  for  him.  This  way  of  considering  it 
makes  that  case  a  direct  autliority  in  point  for  the  plaintiffs. 
There  is  another  circumstance  in  that  case  material  for  con- 
sideration ;  because  it  shows  how  far  only  the  right  of  seizing 
in  trafisitu  extends,  as  between  the  consignor  and  consignee. 
The  plaintiff  in  that  action  was  considered  as  the  consignee ; 
the  defendant,  the  consignor,  had  not  received  the  full  value 
for  his  goods  ;  but  the  consignee  had  paid  150?.,  on  account  of 
(a)  Cited  in  2  Term  Rep.  66. 


1()H6  i,i<  kuai:i:<»\v   v.  mason. 

tht'iM.  I  |M)ii  thr  insolveiuv  of  tliu  t<»nsipiiue,  tlu*  t-onsijjnor 
Heizetl  the  ^onds  in  trunxitit  ;  hut  tluit  \v;is  lioldcii  not  to  be 
justiliiiblc,  iititi  thfirftuv  tlit'iu  was  a  vrnlict  against  him. 
'I'liiit  was  ail  art  ion  of  trovtr,  wliiili  cjouhl  not  liavi*  \tccn  siis- 
taiiu'<l  l>ut  on  tlu'  ^Moimd  tliat  the  propt'ity  was  vrst«'il  in  tht; 
coiisi^nrc,  antl  cnultl  nut  Iw  sri/rd  in  fninxiftt  as  against  him. 
If  tht!  U't^al  j)ro[)rity  ha<l  n-niaimtl  in  tlu'  ronsiirnnr,  what 
ohjcction  rouhl  Ih'  statrd  in  a  court  of  law  to  the  consig'nor's 
taking  his  own  j^oods  ?  Hut  it  was  hi)ldrn  that  he  I'oidd  not 
Hfi/e  tlitf  ^'ouds  ;  which  couhl  only  Im*  on  the  <;round  eontendud 
for  hy  Mr.  Walhue,  the  counsel  for  the  plaintiff,  that  the  projK 
erty  was  in  the  consignee  :  hut  though  the  property  were  in 
the  consit^nee,  yet,  as  I  stated  to  your  lortlships  in  the  outiiet,  if 
the  consi<^iior  had  paid  to  the  consicfnee  all  that  he  had  ad- 
vanced on  ai'count  of  the  j^oods,  the  consignor  would  have  hail 
a  lii^dit  lt»  the  possession  of  the  goods,  even  tliough  they  liail 
got  into  the  hands  of  the  consignt'c  :  and  U[»on  paying  or 
tendering  that  moiu-y,  and  deniamling  the  goods,  the  property 
would  have  revested  in  him,  ami  he  might  have  maintained 
tnn't'r  for  them:  hut  admitting  that  the  eonsigme  had  the  legal 
property,  and  was  therefore  entitled  to  a  verdict,  still  the  tjues- 
tion  remained  what  damages  he  should  recover;  and  in  ascer- 
taining them,  regard  was  had  to  the  true  merits  of  the  case, 
and  the  relative  situation  of  each  party.  If  the  consignee  had 
ohtained  the  actual  possession  of  the  goods,  he  would  have  had 
no  otlu'r  eipiitahle  claim  on  them  than  for  loO/.  lit-  \\;is  en- 
titled to  no  more,  the  defendant  was  liahle  to  pay  no  more  ; 
and  therefore  the  verdict  was  given  for  that  sum.  This  case 
proceeded  precisely  upon  the  same  principles  as  tlie  case  of 
Wii<i'nian  v.  I'twirjuitt  ;  where,  thouglf  it  was  determined  that 
the  legal  property  in  the  goods,  he  fore  they  arrived  was  in 
the  consignee,  yet  the  Court  of  Chancery  held  that  the  con- 
signee should  not  avail  himself  of  that  Ijeyond  what  was  due  to 
him  :  but  for  what  was  due,  the  court  directed  an  account ; 
and  if  anything  were  due  from  the  Italians  to  the  Bonnells, 
tliut  should  be  paid  the  plaintiffs.  The  plaintiffs  in  this  cause 
are  exactly  in  the  situation  of  the  plaintiffs  in  that  case ;  for 
they  have  the  legal  property  in  the  goods ;  and  therefore,  if 
anything  be  due  to  them,  even  in  equity,  that  must  be  paid 
before  any  person  can  take  the  goods  from  them  ;  and  520^ 
w^xs  due  to  them,  and  has  not  been  paid. 


LICKBAKKOW    V.    MASON.  1087 

After  these  authorities,  taking  into  consideration  also  that 
there  is  no  case  whatever  in  which  it  has  been  holden  tliat 
goods  can  be  stopped  iti  transitu,  after  tliey  have  been  sohi  and 
paid  for,  or  money  advanced  upon  them  bond  fide,  and  without 
notice,  I  do  not  conceive  tliat  the  case  is  open  to  any  arguments 
of  policy  or  convenience ;  but  if  it  should  be  thought  so,  I  beg 
leave  to  say,  that  mall  mercantile  transactions,  one  great  point  to 
he  kept  uniformly  in  view  is  to  make  the  circulation  and  negotia- 
tion of  jyroperty  as  quick,  as  easy,  and  as  certain  as  possible.  If 
this  judgment  stand,  no  man  will  be  safe  either  in  buying  or  in 
lending  money  upon  goods  at  sea.  That  species  of  property 
will  be  locked  up ;  and  many  a  man  who  could  support  himself 
with  honour  and  credit,  if  he  could  dispose  of  such  property  to 
supply  a  present  occasion,  would  receive  a  check  which  indus- 
try, caution,  or  attention  could  not  surmount.  If  the  goods  are 
in  all  cases  to  be  liable  to  the  original  owner  for  the  price,  what 
is  there  to  be  bought  ?  There  is  nothing  but  the  chance  of  the 
market ;  and  that  the  buyer  expects  as  his  profit  on  purchasing 
the  goods,  without  paying  an  extra  price  for  it.  But  Turing 
has  transferred  the  property  to  Freeman,  in  order  that  he 
might  transfer  it  again,  and  has  given  him  credit  for  the  value 
of  the  goods.  Freeman  having  transferred  the  goods  again  for 
value,  I  am  of  opinion  that  Turing  had  neither  property,  lien, 
nor  a  right  to  seize  in  transitu.  The  great  advantage  which 
this  country  possesses  over  most,  if  not  all  other  parts  of  the 
known  world,  in  point  of  foreign  trade,  consists  in  the  extent 
of  credit  given  on  exports,  and  the  ready  advances  made  on 
imports :  but  amidst  all  these  indulgences,  the  wise  merchant  is 
not  unmindful  of  his  true  interests  and  the  security  of  his 
capital.  I  will  beg  leave  to  state,  in  as  few  words  as  possible, 
what  is  a  very  frequent  occurrence  in  the  city  of  Lo7ido7i :  —  A 
cargo  of  goods  of  the  value  of  2000?.  is  consigned  to  a  merchant 
in  Jjondon ;  and  the  moment  they  are  shipped,  the  merchant 
abroad  draws  upon  his  correspondent  here  to  the  value  of  that 
cargo ;  and  by  the  first  post  or  ship  he  sends  him  advice,  and 
incloses  the  bill  of  lading.  The  bills,  in  most  cases,  arrive 
before  the  cargo ;  and  then  the  merchant  in  London  must 
resolve  what  part  he  will  take.  If  he  accepts  the  bills,  he 
becomes  absolutely  and  unconditionally  liable ;  if  he  refuses 
them,  he  disgraces  his  correspondent,  and  loses  his  custom 
directly.     Yet  to  engage  for  2000Z.,  without  any  security  from 


1U88  l,l('Kl!Al:Kn\V     V.    MASciN. 

the  drawer,  is  a  hold  luciisuie.  Tlie  goods  may  be  lost  at  sea  ; 
Jiiul  then  the  merchant  here  is  left  to  recover  his  money  a^iiinst 
the  drawer  as  and  when  he  may.  The  (question  tlien  with  the 
merchant  is,  how  can  I  secure  myself  at  all  eventij?  The 
answer  is,  I  will  insure;  and  then  if  the  ^(jods  come  safe  I  shall 
he  re|»aid  out  of  thcin  ;  or,  if  they  he  lost,  1  shall  be  repaid  by 
the  undtrw  rilcrs  on  the  policy  ;  but  this  cannot  l>e  done  uidess 
the  i)ro[)ertv  vest  in  him  by  the  bill  of  lading;  for  otherwise 
his  policy  will  l)e  void  for  want  of  interest  ('O;  :i'>d  an  insur- 
ance, in  the  name  of  the  foreign  nicrchant,  would  not  answer 
the  purpose.  This  is  tin-  case  of  the  merchant  who  is  wealthy, 
and  has  the  2000/.  in  his  banker's  hands,  which  he  can  [)art 
with,  and  not  tind  any  inconvenience  in  .so  doing;  hut  there  is 
another  ca.se  to  be  considered,  vi/.  —  Suppose  the  merchant 
here  has  not  got  the  2000/.,  and  cannot  raise  it  before  he  ha.s 
sold  the  gooiLs? — the  same  considerations  arise  in  his  mind  as 
in  the  former  case,  with  this  additional  circumstance,  that  the 
monev  must  be  procured  before  the  bills  Ix'come  due.  Then 
the  question  is,  how  lan  that  be  done  .'  If  he  have  the  property 
in  the  <'-oods,  he  can  go  to  market  with  the  bill  of  lading  and 
the  policy,  as  was  done  in  Sure  v.  Pr>-sri,t ;  and  upon  that  idea 
he  has  hitherto  had  no  dilliculty  in  doing  so  :  but  if  he  have 
not  the  property,  nobody  will  buy  of  him  :  and  then  his  trade 
is  undone.  Kut  there  is  still  a  third  ciuse  to  l)e  considered;  for 
even  the  wary  and  opulent  merchant  often  wi.shes  to  sell  his 
goods  whilst  they  are  at  sea.  I  will  put  the  case,  by  way  of 
example,  that  barilla  is  shipi)ed  for  a  merchant  here,  at  a  time 
when  there  has  been  a  dearth  of  that  commodity,  and  it  pro- 
duces a  protit  of  25/.  per  rent.,  whereas,  ui)on  an  average,  it 
does  not  produce  above  12/.  The  merchant  ha.s  advices  that 
there  is  a  great  quantity  of  that  article  in  Spain,  intended  for 
the  British  market ;  and  when  that  arrives,  the  market  will  be 
glutted,  and  the  commodity  much  reduced  in  value.  He  wishes, 
therefore,  to  sell  it  immediately  whilst  it  is  at  sea,  and  before  it 
arrives ;  and  the  protit  which  he  gets  by  that  is  fair  and  hon- 
ourable :  but  he  cannot  do  it  if  he  have  not  the  property  by  the 
bill  of  lading.  Besides,  a  quick  circulation  is  the  life  and  soul 
of  trade ;  and  if  the  merchant  cannot  sell  with  safety  to  the 
buyer,  that  must  necessarily  be  retarded.     From  the  little  expe- 

(a)  St.  19  G.  3,  c.  37,  s.  1. 


LICKBAKROW   Y.    MASON.  1089 

rience  which  I  acquired  on  this  subject  at  G-uildJiall,  I  am  con- 
fident that  if  the  goods  in  question  be  retained  from  the  plain- 
tiff without  repaying  him  what  he  had  advanced  on  the  credit 
of  thenv  it  will  be  mischievous  to  the  trade  and  commerce  of 
this  country;  and  it  seems  to  me  that  not  only  commercial 
interest,  but  plain  justice  and  public  policy,  forbid  it.  To  sum 
up  the  whole  in  very  few  words :  the  legal  property  was  in  the 
plaintiff ;  the  right  of  seizing  in  transitu  is  founded  on  equity. 
No  case  in  equity  has  ever  suffered  a  man  to  seize  goods  in 
opposition  to  one  who  has  obtained  a  legal  title,  and  has 
advanced  money  upon  them;  but  Lord  Hardtvickes  opinion 
was  clearly  against  it;  and  the  law,  where  it  adopts  the 
reasoning  and  principles  of  a  court  of  equity,  never  has  and 
never  ought  to  exceed  the  bounds  of  equity  itself.  I  offer  to 
your  lordships,  as  my  humble  opinion,  that  the  evidence  given 
by  the  plaintiff,  and  confessed  by  the  demurrer,  is  sufficient  in 
law  to  maintain  the  action. 

Ashurst  and   Grose,  Justices,  also    delivered   their  opinions 
for  reversing  the  judgment  of  the  Exchequer  Chamber. 

Up^e,  C.  J.,  Gould,  J.,  Heath,  J.,  Hotham,  B.,  Perryn,  B.,  and 
Thomson,  B.,  contra. 

This  case  stood  over  from  time  to  time  in  the  House :  and 
was  postponed,  in  order  to  consider  a  question  which  arose  in 
another  case  of  Gibson  v.  Minet,  upon  the  nature  and  effect  of 
a  demurrer  to  evidence,  which  was  thought  to  apply  also  to  the 
present  case ;  and,  finally,  the  House  reversed  the  judgment  of 
the  Exchequer  Chamber,  which  had  been  given  for  the  defend- 
ant ;  and  ordered  the  King's  Bench  to  award  a  venire  de  novo 
(upon  the  ground  that  the  demurrer  to  evidence  appeared  to 
be  informal  upon  the  record)  and.  that  the  record  be  remitted. 


Tms  celebrated  case  involves  two  important  propositions.  The  former  is, 
that  the  unpaid  vendor  may,  in  case  of  the  vendee's  insolvency,  stop  the  goods 
sold  in  transitu.  The  latter,  that  the  rirjht  to  stop  in  transitu  may  be  defeated 
by  negotiating  the  bill  of  lading  loith  a  bona  fide  indorsee. 

The  right  of  a  vendor  to  stop  in  transitu  is  bestowed  upon  him  in  order  to 
prevent  the  injustice  which  would  take  place,  if,  in  consequence  of  the 
vendee's  insolvency,  while  the  price  of  the  goods  was  yet  unpaid,  they  were 
to  be  seized  upon  in  satisfaction  of  his  liabilities,  and  so  the  property  of  one 
man  were  to  be  disposed  of  in  payment  of  the  debts  of  another.  The  doctrine 
was  first  introduced  in  Equity  by  the  cases  of  Wiseman  v.  Vandeputt,  2  Vern. 


10!i(»  Li('KnAi:i:M\v   v.  mason. 

20;5;  Snee  v.  Prfurot,  \  \ik  .Mi.,  an. I  It  Anuil't  v.  l.itint.Tt,  '.'  K<liTi.  7' ;  Aliib. 
8y.  It  lias  .sliK'c  ht'i'ii  rfpruti'«lly  tllsfu.ssi'tl  in  fourts  of  c-oiiunoti  luw  ;  niitl 
It  uppc'urs  strariyi'  that  tlioimli  /»<«;</)«iy»'  in  tninnitu  lia.H  tM-cn  for  many  yoars 
«)(ii-  of  the  nio>t  practU-ally  Iniportunl  liranciu's  of  i-oiiiiiii>ri-ial  luw,  yet  It.s 
pri'clsi'  L'flVct  upon  till-  coiitnu-t  of  salr  has  nt'vrr  a>  yrt  Ihtii  ax-tTtaiut-d. 

A  liiiflily  intt-rcstlnt;  ilisi|ulsitlon  upon  it.s  hlittory  and  cliaractt-r  will  Im.> 
foiiiui  In  Lord  Atnmjrr'a  Jiid<;nit'nt  In  (iibaon  v.  i.'urruthert,  8  M.  &  VV.  :i36. 

Tin*  ipii'stion  wlu'lhrr  rtujipaije  in  trnnnitti  ri'.scln«ls  the  rontnirt  of  h«1c 
altoyt-tluT,  or  otdy  puts  tin-  vendor  in  possossion  of  a  lii-n  on  the  ({(mhLh 
dcfcasiltlt'  on  payment  of  tli<*  price  ai;rc)-d  on,  has  often  iM-en  matter  of 
controversy,  parti<-niarly  in  ('lii'j  v.  Jlnrrii^Dn,  Id  II.  i  f.  !V»,  and  was  Hnld 
in  Slfpftiits  V.  W'ilkiitxoii,  '.\  B.  &.  .\tl.  'ST.i,  U>  he  still  undetennined.  See  al.so 
Wilmhurst  v.  li<>,rk,r,  '»  Hlui;.  N.  ('.  '147;  In  error,  «  Scott,  N.  U.  :.7o ;  [7  M.  & 
Cf.  WH-'.  S.  ('. ;]  (iihsnn  V.  (arnit/urs,  s  M.  Jt  W.  ;»'-M  ;  M't-ntteurth  v.  Onlhtemte, 
10  .M.  &  W.  4.11  ;  and  Kiltmnln  v.  lirncr,  2  M.  v<.  W.  .175. 

Lonl  h'l iiijnn  in  llitifijunn  v.  Loy,  7  T.  H.  445,  wa.s  (»f  opinion  that  It  wa.s  not 
a  rescission  oi'  the  sale,  but  was  (to  use  his  lordship's  own  words)  "an 
e(|uitnl)ic  lien  adoptetl  l>y  the  law  for  the  purpo.se  of  snl>stantinl  Justice," 
wlieme  it  was  held  to  follow  tliat  part  payment  of  the  pri«e  by  the  vendee 
would  not  destroy  the  rli;ht  to  stop  in  tninnilii,  hut  only  dhnlnlsh  the  lien 
pro  t<tnti>. 

Confusion  has  sometimes  arisen  on  this  subject,  from  its  l»elnj;  iLssiimed 
that  a  vendor's  riirlit  over  the  ;roods  in  respect  of  his  price  is  sniiject  to  the 
same  rules  as  an  ordinary  lim  which  cannot  exist  without  both  the  rlf;hl  ami 
the  fact  of  p<issession,  ami  is  lost  and  cannot  be  resume<l  If  Uie  party  claim- 
in;;  It  al»andon  either  the  possession,  or  the  rlirht  to  possess  the  thlnu  over 
which  it  is  claimed  :  whereas  "  the  vendor's  riyht  in  respect  of  his  price," 
says  Hniihu,  ,].,  deliverini;  jU4l;;meiit  In  lilnxmn  v.  Sumltrs,  4  B.  &  ('.  'JiH,  "  \n 
not  a  niiTc  lien  wldch  he  will  forfi-it  if  he  parts  with  the  possession,  but 
;;ri)ws  out  of  his  orluiiial  ownership  and  «li>miiiion.  If  yoods  are  sold  on 
credit,  and  nothlrji:  is  ayretMl  on  as  to  the  time  of  delivering  the  ;joods,  the 
vendee  is  imim-diately  entitletl  to  the  |>ossession  :  and  tin-  rii;lit  of  possession, 
and  the  riylit  of  property,  vest  at  once  In  him;  hut  his  ri;jht  of  possession  is 
not  al)solute,  It  is  lial)le  it  be  defeated  if  he  becomes  insolvent  before  he 
obtains  possession,  Timkr  v.  IlitlUuijirurth,  5  T.  U.  215.  If  the  seller  has 
dispatched  the  <»oods  to  the  buyer,  anil  In.solvency  occur,  he  ha.s  a  ri^ht 
in  virtue  of  his  t>rii;inal  ownership  to  stop  th»'m  in  transitu.  Mason  v.  Lirk- 
barruic,  1  II.  Bl.  ;?57 ;  Kllis  v.  Hunt,  3  T.  U.  4i;4  ;  lIo,l.j>ton  v.  Lnij,  7  T.  U.  440; 
/;i(//('.s-  v.  Ushtrmioil,  1  East,  515;  liothUn<jk  v.  Infjlis,  3  East.  :W1.  Why? 
Because  the  proprrtij  is  vested  in  tlie  buyer,  so  as  to  subject  him  to  the  risk 
of  any  accident,  but  he  has  not  an  indefeasible  riiiht  to  the  posspssion ,  and 
his  insolvency  without  payment  of  the  price  defeats  that  ri^ht.  The  buyer, 
or  those  who  stand  in  his  place,  may  still  obtain  the  rijiht  of  posses.sion,  if 
they  will  pay  or  tender  the  price,  or  they  may  still  act  on  their  right  of  prop- 
erty rf  any  thins:  unwarrantable  is  done  to  that  right.  If,  for  instance,  the 
original  vendor  sell  when  he  ought  not.  they  may  bring  a  special  action 
against  him  for  the  damage  they  sustain  by  such  wrongful  sale,  and  recover 
damages  to  the  extent  of  tliat  injur}-;  Ijut  they  can  maintain  no  action  in 
which  the  right  of  property  and  right  of  possession  are  both  rei|uisite.  unless 
they  have  both  those  rights.     Gordon  v.  ITarprr.  7  T.  R.  0." 

This  luminous  view  of  the  principles  upon  which  an  unpaid  vendor's  right 
depends  is,  as  will  have  been  soen,  totally  inconsistent  with  the  idea  that 


LICKBAlinOW    V.    MASON.  1001 

stoppage  in  transitu  operates  as  a  rescission  of  tlie  contract  of  sale,  and 
deserves  tlie  more  attention  because  it  is  contained  in  the  written  judgment 
of  the  court  delivered  after  a  curia  advisari  vult ;  see,  too,  Edvmrds  v.  Brewer, 
2  M.  &  W.  875;  Martindale  v.  Smith,  1  G.  &  D.  1,  1  Q.  B.  397,  S.  C. ;  [the 
opinion  of  BnUer,  J.,  in  the  text,  p.  781,  and  the  judgment  of  Williams,  J., 
in  Johnston  v.  Stear,  15  C.  B.  N.  S.  330,  339.J 

In  Wentuiorth  v.  Outhwaite,  10  M.  &  W.  451,  Parke,  B.,  in  delivering  the 
judgment  of  the  Court  of  Exchequer,  stated  that  the  question  discussed 
above,  "  what  the  effect  of  stoppage  in  transitu  is,  whether  entirelj'  to  rescind 
the  contract,  or  only  to  replace  the  vendor  in  the  same  position  as  if  he  had 
not  parted  with  the  possession,  and  entitle  him  to  hold  the  goods  until  the 
price  l)e  paid  down,  is  a  point  not  j^et  finally  decided,"  and  that  "there  are 
difiiculties  attending  each  construction."  In  that  case  one  of  several  parcels 
of  goods  sold  under  an  entire  contract  had  reached  the  place  of  destination ; 
and  upon  the  stoppage  of  the  rest  in  transitu,  the  vendor  insisted  that  the 
effect  was  to  rescind  the  contract  of  sale  altogether,  and  consequently  to 
revest  in  him  the  property  in  the  part  which  had  reached  the  place  of  destina- 
tion. The  barons  of  the  Exchequer  decided  against  that  argument,  but  for 
different  reasons ;  the  majority  of  the  court,  Parke,  Alderson,  and  Rolfe,  BB., 
being  strongly  inclined  to  think,  that  upon  the  weight  of  authority  a  stoppage 
in  transitu  must  be  considered,  not  as  a  rescission  of  the  contract,  but  as 
merely  replacing  the  vendor  in  the  same  position  as  if  he  had  not  parted  with 
the  possession ;  from  which  it  followed  that  the  vendor's  right  of  lien  on  the 
part  stopped  Avas  revested ;  and  no  more ;  whilst  Lord  Abinyer  expressed  an 
opinion,  to  which  on  consideration  he  adhered,  that  the  effect  of  stoppage 
in  transitu  is  to  rescind  the  contract ;  but  he  did  not  think  that  that  affected 
the  right  of  the  vendee  in  the  case  before  the  court,  to  retain  the  portion  of 
the  goods  which  had  been  actually  delivered  to  him ;  or,  in  other  words,  had 
reached  the  place  of  their  destination ;  more  especially  when  the  goods  and 
the  price  might  be  apportioned  and  a  new  contract  be  implied  from  the 
actual  deliverj'  and  retention  of  a  part. 

The  arguments  in  Wentioorth  v.  Outhwaite  contain  the  authorities  on  either 
side  of  the  question,  to  which  may  be  added,  that  in  the  latter  case  of  Jen- 
kyns  v.  Usborne,  8  Scott,  N.  R.  522,  816,  Tindal,  C.  J.,  in  delivering  a  consid- 
ered judgment  of  the  Court  of  Common  Pleas,  spoke  of  stoppage  in  transitu 
as  a  right  to  rescind  the  contract ;  but  the  nature  of  the  right  was  not  there 
in  question. 

It  is  conceived  (notwithstanding  the  weight  of  Lord  Abinger's  opinion  on  a 
subject  in  which  his  practised  and  sagacious  mind  was  eminently  calculated 
to  arrive  at  a  correct  conclusion)  that  the  pi'cponderance  of  reason  and  au- 
thority is  in  favour  of  the  opinion  expressed  by  the  majority  of  the  court  in 
Wentworth  v.  OutMvaite.  [And  it  would  seem  to  be  in  accordance  with  this 
view  that  the  right  of  stoppage  has  been  held  to  be  a  proper  subject  of  a  bill 
in  equity.  See  Scotsman  v.  Lancashire  and  Yorkshire  Railway  Co.,  per  Lord 
Cairns,  L.  R.  2  Ch.  332,  36  L.  J.  Ch.  361.  In  Kemp  v.  Falk,  7  App.  Ca.,  at  p. 
581,  Lord  Blackburn  says  :  "It  is  pretty  well  settled  now  that  a  stoppage  in 
transitu  would  not  rescind  the  contract." 

The  right  of  stoppage  is  not  only  to  countermand  delivery  to  the  vendee, 
but  to  order  delivery  to  the  vendor,  and  the  master  on  receiving  such  order  is 
bound  to  deliver  to  the  latter  as  soon  as  he  knows  that  the  order  was  given 
by  him.     Tlie  Tigress,  Brown  &  Lush.,  Adm.  Ca.  38  ;  42  L.  J.  Adm.  97.] 

Supposing  the  contract  of  sale  not  to  be  rescinded,  it  seems  to  follow,  that 


I<>;t2  LIC'KHAl:l:n\V    \.    MASON. 

tin*  {jootis,  wliili-  (Iftaiiud,  nniain  at  the  rl«.k  kI'  tlu'  vriidt'o,  niul  tliat  the  ven- 
dor can  \in\v  no  rinht  to  rrsdl  tlu-iii,  at  all  rvriits  until  tin-  prrioil  of  rrt'illt  In 
expired;  after  tliat  period,  iiule«-d,  the  refusal  of  tin-  vt-uilee  or  Inn  rrpresen- 
tatives  to  receive  the  ;;oods  uinl  pay  tlie  price,  woultl  probably  be  held  to  entitle 
the  vendor  to  elect  to  rescinti  the  contract.      See  Luini/niil  v.  J'il»> ,  Salk.  li;i. 

Hut  what,  it  will  be  said,  if  the  <;oods  be  of  so  perishable  a  nature  that  the 
vendor  cannot  keep  them  till  the  tin>e  of  credit  has  expired?  In  such  a  case 
It  is  submitted  tliat  courts  of  law  havini;  ori:;inally  adopted  this  doctrine  of 
stuppitijf  in  transitu  from  e(|uity,  wouUi  act  on  ei|uital)le  principles  by  holding; 
the  ventlor  invested  with  an  implied  authority  to  make  tiie  nei-essary  sale. 

[For  the  rijL^ht  of  an  unpaid  vendor  sonn-what  analogous  to  tliat  of  stop- 
pafje  in  transitu,  see  Hx  pmtf  ('lutlmirn,  L.  H  H  Ch.  I's'.i,  H  I,.  J.  V\\.  'M ,  where 
it  was  lieUl  that  "  wln-n  a  purchaser  l)ecomes  ins(»lveiit  before  the  contract 
for  sale  lias  been  c<»mplelely  performed,  the  seller,  iiotw  ithstaiulin;;  he  may 
have  aj;reed  to  allow  credit  for  the  ijooils,  is  not  bonml  t<»  deliver  any  more 
poods  under  tin-  contract  until  the  price  of  the  uo<hIs  not  yet  delivered  ih 
tendered  to  him;  aiitl  that,  if  a  debt  is  due  to  him  for  ;roo«|s  already  «le- 
livereii,  he  is  entitled  to  refuse  to  deliver  any  more  till  he  is  paiti  the  debt  due 
for  tlios*'  already  delivered,  as  well  as  the  price  of  those  still  to  be  delivered." 
It  has  been  hehl  by  the  .ludicial  Conimittee  of  the  I'rivy  Council  that  the 
above  riu'ht  is  not  destroyetl,  thou;;h  the  vendor  retain  tlie  i;oods  as  ware- 
houseman for  the  vendee,  dricf  v.  lUrhnnhitn,  W  App.  ('as.  :Ut>;  4"  L.  J.  I*. 
(".  JH.  It  exists  ind«-pendently  «)f  the  <|Uestion  whether  there  has  not  been  an 
actual  rescission  of  the  contract,  for  it  must  not  be  overlooked  that  ntrrt  in- 
solvency i)y  Itself  does  not  operate  to  dissolve  the  contract.  Insolvency, 
however,  coupled  with  otlier  facts,  is  evidence  of  the  vendee's  intention  not 
to  stand  by  the  contract,  upon  which  the  vendor  may  act,  so  that  by  the  con- 
sent of  both  jiarlies  the  contract  may  be  rescinded.  Munjitn  v.  Itnin,  L.  K.  10 
C.  r.  15;  44  L.  J.  C.  1'.  47;  (innn  v.  linlrkmc,  L.  U.  10  Ch.  4'.»1  ;  44  L.  J.  Ch. 
73.};  In  >v  I'hanij-  Co.,  4  Ch.  1).  10,S;  44  L.  J.  Ch.  i\M;  Impfrial  Hank  v.  Lon- 
don and  St.  Kathrrinr-.^  Dock  Co.,  5  Ch.  D.  19.>;  4(1  L.  J.  Ch.  33'..] 

It  is  hardly  necessary  to  add.  that  a  wroiiirful  stoppa;;e  in  transitu  lias  not 
the  ellect  of  rescindinj;  the  contract  of  sale,  or  of  atlectin^  the  vendor's  right 
to  sue  for  the  price,  acquired  before  the  stoppage.  In  re  Ilumhertson,  1  De 
Gex,  2r>2;  and  see  Gillard  v.  Brittan,  8  M.  &  W.  'yir>. 

[Tlie  acceptance  of  a  bill  for  the  price  of  the  goods  by  the  vendee  does  not 
take  away  his  right  to  stop,  unless  the  bill  is  taken  in  painmnt  whether  paid 
or  not.      Feise  v.  U'raij,  3  East,  !»3;  Edirards  v.  lirctrer,  2  M.  &  W.  37.'>.] 

Tlie  person  who  stops  in  transitu  must  be  a  consignor  [or  vendor].  A 
mere  surety  for  the  price  of  tiie  goods  has  no  right  to  do  so.  Siffkin  v.  Wray, 
(j  East,  371.  [Tliougli  perhaps  where  the  surety  has  paid  the  vendor,  he  may 
obtain  the  right  to  stop  in  his  name  under  the  Mercantile  Law  Aniendineut 
Act,  19  &  20  Vict.  c.  97,  s.  5.  See  Imperial  Bank  v.  London  and  St.  Katherine'3 
Dock  Co.,  5  Ch.  D.  195 ;  4G  L.  J.  Ch.  335.]  But  a  person  residing  abroad,  who 
purchases  goods  for  a  correspondent  in  England,  whom  he  charges  with  a 
commission  on  the  price,  but  whose  name  is  unknown  to  those  from  whom 
he  makes  the  purchases,  may  stop  the  goods  in  transitu  if  his  correspondent 
fail  while  they  are  on  their  passage,  for  the  [purchaser]  abroad  [may]  be 
considered  as  a  uew  vendor,  selling  the  jroods  over  again  to  the  merchant  in 
England,  and  only  adding  to  the  price  the  amount  of  his  commission.  Feise 
V.  Wraij,  3  East,  93;  see  [Falkp  v.  Fletchor,  18  C.  B.  N.  S.  403;  34  L.  J.  C.  P. 
14G:  iuid]  Xeii:soin  v.  Thornton,  G  East,  17.  where  a  person  who  had  consigned 


LICKBAREOW   V.    MASON.  1093 

goods  to  be  sold  on  the  joint  account  of  himself  and  the  consignee,  was  held 
entitled  to  stop  them  in  transitu,  the  consignee  becoming  insolvent.  [So 
a  person  who  buys  goods  for  another  on  his  own  credit  and  takes  bills  of 
lading  indorsed  for  delivery  to  his  own  order,  and  then  indorses  the  bills  to 
the  party  for  whom  he  bought,  is  a  vendor  for  the  purpose  of  stoppage  in 
transitu :  The  Tigress,  Brown  &  Lush.  Adm.  Ca.  38 ;  32  L.  J.  Adm.  97 ;  and 
where  a  vendee's  broker,  being  liable  by  custom  for  the  price  of  goods,  paid 
the  vendor,  it  was  held  that  "  having  regard  to  the  terms  of  the  Mercantile 
Law  Amendment  Act,  (19  &  20  Vict.  c.  97,  s.  5,)  and  to  the  justice  of  the  case, 
the  lien  of  the  unpaid  vendors  was  a  security  which  subsisted  for  the  benefit 
of  the  broker  who  paid  the  money,  and  therefore  he  could  in  their  name  have 
stopped  the  goods  :  "  Imperial  Bank  v.  London  and  St.  Katherine' s  Dock  Co., 
5  Ch.  I).  195;  46  L.  J.  Ch.  335.  In  Hathesing  v.  Laing,  L.  R.  17  Eq.  92;  43 
L.  J.  Ch.  233,  Bacon,  V.-C,  would  seem  to  have  held  that  a  broker  who  had 
paid  the  price  of  goods  for  his  principal  the  vendee,  and  had  shipped  them  in 
the  vendee's  name,  was  not  in  the  position  of  a  vendor,  so  as  to  stop  in  tran- 
situ;  but  the  case  was  decided  also  on  other  grounds,  and  as  regards  this 
point  is  perhaps  hardly  reconcileable  in  principle  with  those  last  cited.] 

In  Jenkijns  v.  Usborne,  8  Scott,  N.  R.  522;  7  M.  &  G.  678,  S.  C,  it  was 
attempted,  but  without  success,  to  confine  the  right  to  vendors  in  whom  the 
property  in  the  goods  has  actually  vested  at  the  time  of  the  stoppage,  and  to 
exclude  from  it  a  vendor  in  whom  the  property  in  the  goods  had  not  vested 
at  the  time  of  the  stoppage,  but  only  an  interest  in  and  right  to  receive  a 
certain  portion  of  a  cargo  to  be  aftenvards  ascertained  and  appropriated  to 
the  parties  interested  in  it,  of  whom  he  was  one.  Tindal,  C.  J.,  in  giving 
judgment  said :  "  We  see  no  sound  distinction,  with  reference  to  the  right  of 
stoppage  in  transitu,  between  the  sale  of  goods  the  property  of  which  is  in 
the  vendor,  and  the  sale  of  an  interest  which  he  has  in  a  contract  for  the 
delivery  of  goods  to  him ;  if  he  may  rescind  the  contract  in  one  case,  for  the 
insolvency  of  the  purchaser,  he  must,  by  parity  of  reasoning,  have  the  right 
to  rescind  it  in  the  other."  As  to  what  is  a  sufficient  authority  from  the 
vendor  to  enable  another  person  on  his  behalf  to  stop  goods  in  transitu,  see 
Whitehead  v.  Anderson,  9  M.  &  W.  518;   [Keinj)  v.  Falk,  7  App.  Ca.  585.] 

Stoppage  in  transitti,  as  its  name  imports,  can  only  take  place  while  the 
goods  are  on  their  way;  if  they  once  arrive  at  the  termination  of  their  jour- 
ney, and  come  into  the  actual  or  constructive  possession  of  the  consignee, 
there  is  an  end  of  the  vendor's  right  over  them.  And,  therefore,  in  most  of 
the  cases  the  dispute  has  been  whether  the  goods  had  or  had  not  arrived  at 
the  termination  of  their  journey.  The  rule  to  be  collected  from  all  the  cases 
is,  that  they  are  in  transitu  so  long  as  they  are  in  the  hands  of  the  carrier  as 
such,  whether  he  was  or  was  not  appointed  by  the  consignee,  [Ex  parte  Rose- 
vear  China  Clay  Co.,  per  Brett,  L.  J.,  11  Ch.  D.,  at  p.  570,]  and  also  so  long  as 
they  remain  in  any  place  of  deposit  connected  with  their  transmission.  But 
that,  if,  after  their  arrival  at  their  place  of  destination,  they  be  warehoused 
with  the  carrier,  whose  store  the  vendee  uses  as  his  own,  or  even  if  they  be 
warehoused  Avith  the  vendor  himself,  and  rent  be  paid  to  him  for  them,  that 
puts  an  end  to  the  right  to  stop  in  transitu.  See  Nicholls  v.  Lefevre,  2  Bing. 
N.  C.  83;  James  v.  Griffin,  1  M.  &  W.  20;  Edwards  v.  Breioer,  2  M.  &  W.  375; 
INicholson  v.  Boicer,  1  E.  &  E.  172,  per  Lord  Campbell,  C.  J. ;]  and  James  v. 
Griffin,  iterum,  2  M.  &  W.  623,  (where  the  court  differed  on  the  question 
whether  evidence  of  the  vendee's  intention  not  to  take  possession  uncom- 
municated  to  the  wharfinger  was  admissible,)  Mills  v.  Ball,  2  B.  &P.  457; 


1094  LiCKnAiuiow  V.  mason. 

Iludyton  v.  L<>y,  7  T.  11.  410;  Smith  v.  (ii>»»,  1  Ctimp.  282;  Conta  v.  Rttiltun,  6 
B.  &  C.  422;  [lis  to  wliich  casi-,  however,  see  Kemiil  v.  Mamhall,  II  Q.  B.  I)., 
at  p.  3G0,  ptr  Hntt.  L.J.  ;]  ItirhnnlMnn  v.  ^r'oit.-*,  3  H.  &  I*.  127;  >'<<»«  v.  Petit, i 
B.  i  P.  4t;i»;  Fo»lfr  v.  Frinnptnn.  (i  B.  &  C.  HW;  /I'ojr*-  v.  Pirkford ;  [H  Tniiiit. 
83;]  Uurrij  v.  Mnnylea,  1  Camp.  452;  Stm-fld  v.  Ilni/hfa,  13  Ku.st.  40M ; 
[Ileinekftj  v.  A'/jW*?,  8  K.  &  B.  410,  atltnnetl  lii  error,  /'»i«/.,  427;  AV  p'lrtf  Cat- 
ling, 29  L.  T.  X.  S.  431 ;  Ihdtun  v.  Lnnc.  &  Y.  Uuil.  Co.,  L.  K.  1  C,  1'.  431  ;  35 
L.  J.  C.  r.  137 ;  Rmhjer  v.  TAe  Comptnir  trEsi-ninpte  de  Pari»,  L.  K.  2  1*.  C.  C. 
398;  Ex  parte  Watson,  In  Tf  Love,  5  Ch.  1).  3.j ;  4«;  L.  J.  Bank.  71  ;  Mt-rrhant 
Bankiuij  Co.  v.  Phwnix  lifaanner  Steel  Co.,  .1  Ch.  I).  2(t.j,  4C  L.  J.  Ch.  419;  and 
see  Conprr  v.  mil,  3  11.  &  C.  722;  34  L.  J.  Exeh.  HU.] 

The  arrival  of  the  ^^ood.s  at  a  place  where  they  are  to  he  at  the  onlers  of 
the  buyer,  in  tlic  liaiuh  of  persons  who  are  to  keep  tiieni  for  him,  is  an  end  of 
tile  trau^itus,  altiiou;;li  tlie  place  l)e  not  tliat  uf  tlieir  \ittimate  destination, 
Winticorth  v.  Oiitltiraite,  10  M.  &  W.  43(5;  Dodaon  v.  Wtntieorth,  5  Scott,  X.  K. 
821 ;  4  M.  &  Or.  1080,  S.  C. ;  [see  Cuanrk  v.  lioldnnon,  1  B.  &  S.  299;  .30  L.  J. 
Q.  B.  2G1 ;]  beeau.se  In  such  a  case  the  jjocmIh  have  not  Into  the  hands  of  a;;entH 
for  the  buyer,  not  concerned  merely  in  the  carriaije  of  tlie  goods.  .\ntl  the 
8ame,  as  it  seems,  wliere  tlie  ;jo(kIs  iiave  j;"t  '"t"*  ll>^'  hands  of  a  person  em- 
ployed l)y  the  buyer  to  receive  them  from  the  tir>t  carrier  or  out  of  the  ware- 
liouse  wliere  tiny  wero  when  solil.  and  «ive  them  a  new  destination,  as  In 
Valpij  v.  (iili.sDit,  [4  C.  B.  837,]  where  the  f;oo«ls  had  been  ordered  for  the 
Valparaiso  market,  and  the  Court  of  Common  IMeas  expressed  their  opinion 
that  tlic  transit  was  at  an  end  upon  the  arrival  of  the  j;o<kIs  In  the  hands  of 
the  vendee's  shi|)pini;  ayent  at  Liverpool.  [.Sec  also  Kx  parte  (rihhg.  In  re 
Whitworth,  1  Ch.  I).  101  ;  45  L.  J.  Bank.  10. 

Secun  where  the  goods  are  only  arriveil  in  a  vessel  at  a  port  for  orders, 
though  the  vendee  is  to  give  the  orders  for  the  ultimate  destination.  Fr<i.srr  v. 
117//,  L.  It.  7  K<|.  04.  and  also  where  the  goods  were  delivereii  at  the  i)ort  of 
destination  to  a  wareliouseman  not  named  l)y  the  consignee,  l)ut  who  consid- 
ered liimself  to  l)e  acting  as  agent  for  tlie  consignee.  Ex  parte  liurnnr,  t)  Ch. 
1).  7.^3;  4»J  L.  J.  Bank.  71  ;  and  see  Ex  parte  Watson,  5  Ch.  I).  .3.'.;  4(5  L.  J. 
Bank.  97,  where  goods  were  forwarile<l  by  the  vendor  from  Yorkshire  to 
London,  to  be  there  shipped  for  Shanghai  by  the  vendee,  on  the  terms  of  a 
special  arrangement  between  the  venilor  and  vendee,  whereby  inter  alia,  the 
former  was  to  have  a  lien  on  the  liill  of  lading  and  shipment.  It  was  held 
that  the  trausittis  continued  from  Yorkshire  to  Shanghai. 

On  the  otlier  hand,  where  the  purchaser,  Loeftler,  of  goods  at  Bolton 
directed  the  vendor  Kendal  to  send  the  goods  to  (larston,  and  at  the  same 
time  instructed  his  agents  Marshall.  Stevens  &  Co.  at  Garston,  to  forward 
them  to  Rouen,  it  was  held  tliat  tlie  transit  ceased  when  the  goods  reached 
Garston  and  wore  lying  there  in  the  warehouses  of  the  railway  company  who 
had  given  Marshall,  Stevens  &  Co.  the  usual  notice  that  tlie  goods  had 
arrived,  and  that  if  delivery  were  not  taken  in  due  course  the  company  would 
hold  tliera  as  warehousemen  and  would  charge  rent;  Kendal  v.  Marshall,  11 
Q.  B.  D.  35G;  52  L.  J.  Q.  B.  313.  Ex  parte  Miles,  15  Q.  B.  D.  39,  is  a  some- 
what similar  case,  in  which  the  transit  was  held  as  a  matter  of  fact  to  be 
over  on  the  arrival  of  the  goods  at  a  place  short  of  their  final  destination.] 

In  Coicasjee  v.  Thoinjison,  5  Moo.  P.  C.  105,  the  goods  were  purchased  in 
London  "  free  on  board,"  to  be  paid  for  upon  delivery  on  board,  in  a  bill  at 
six  months,  or  cash  less  two  and  a  half  per  cent,  discount,  at  the  seller's 
option.     The  goods  were  delivered  by  the  seller  into  a  vessel  indicated  by 


LICKBARROW   V.    MASON.  1095 

the  purchaser,  and  a  receipt  for  them  was  obtained  from  tlie  mate,  which  the 
seller  kept.  The  seller  elected  to  be  paid  by  bill,  which  was  accordingly 
given,  and  the  master,  unthout  requiring  the.  return  of  the  mate's  receipt,  signed 
bills  of  lading  for  the  goods  as  shipped  by  the  purchaser.  By  the  custom  of 
the  port,  the  phrase  "  free  on  board"  imports  that  the  buyer  is  considered  as 
the  shipper,  though  the  seller  is  to  bear  the  expense  of  shipment.  The  Judi- 
cial Committee  held  that  the  transit  was  at  an  end,  and  the  right  to  stop  gone, 
so  soon  as  the  goods  were  put  on  board,  and  the  bill  given  for  the  price. 
Qucere.     [See  Ex  parte  Rosevear  China  Clay  Co.,  11  Ch.  D.  560.J 

See  also  Van  Casteel  v.  Booker,  2  Exch.  691,  [A'ey  v.  Cotesvjorth,  1  Ex.  595; 
Browne  v.  Hare,  3  H.  &  N.  484,  affirmed  in  error,  4  H.  &  N.  822;  29  L.  J. 
Exch.  6;  Schuster  v.  M'Kellar,  7  ^.  &  B.  705;  Green  v.  Sichel,  7  C.  B.  N.  S. 
747;  Moakes  v.  Nicholson,  19  C.  B.  N.  S.  290,  34  L.  J.  C.  P.  273;  Shepherd  v. 
Harrison,  L.  R.  5  H.  L.  116,  40  L.  J.  Q.  B.  148,]  as  to  how  far  the  intention 
with  which  the  goods  were  shipped  may  aflect  the  question,  and  when  and 
how  far  in  this  sort  of  case  it  is  one  of  fact  for  the  jury  even  though  the 
documents  are  not  express  upon  the  point.  [For  a  case  where  the  facts  were 
in  a  court  of  equity,  held  to  negative  a  transit,  the  ship  belonging  to  the 
buj^er,  see  Schotsmans  v.  L.  &  Y.  Rail.  Co.,  L.  R.  2  Ch.  332,  36  L.  J.  Ch.  361. 
For  the  reverse  case,  where  the  ship  was  only  chartered  by  the  buyer,  Berntd- 
son  V.  Strang,  L.  R.  4  Eq.  481,  3  Ch.  588,  37  L.  J.  Ch.  665 ;  Ex  parte  Rosevear 
China  Clay  Co.,  11  Ch.  D.  560.] 

Whilst,  however,  goods  sold  remain  in  the  hands  of  a  carrier  employed  to 
convey  them  to  their  original  destination  as  between  the  buyer  and  seller,  no 
case  of  constructive  possession  in  the  buyer  arises,  unless  "  where  the  carrier 
enters  expressly  or  by  implication  into  a  new  agreement  distinct  from  the 
original  contract  for  carriage,  to  hold  the  goods  for  the  consignee  as  his 
agent,  not  for  the  purpose  of  expediting  them  to  the  place  of  original  destina- 
tion pursuant  to  that  contract,  but  in  a  new  character  for  the  purpose  of 
custody  on  his  account,  and  subject  to  some  new  or  further  order  to  be  given 
to  him."  Whitehead  v.  Anderson,  9  M.  &  W.  518.  [Ex  parte  Cooper,  11  Ch.  D. 
77,  per  James,  L.  J.]  And  in  the  absence  of  such  a  new  agreement,  it  seems 
that  the  mere  acts  of  marking  or  sampling  the  goods,  or  giving  notice  to  the 
carrier  to  hold  the  goods  for  the  buyer,  though  done  with  the  intention  to 
take  possession,  do  not  establish  a  constructive  possession  in  the  buyer,  or 
affect  the  right  to  stop  in  transitu,  Ibid.;  [Coventry  v.  Gladstone,  L.  R.  6  Eq. 
44,  37  L.  J.  Ch.  492,]  and  see  Dixon  v.  Yates,  5  B.  &  Ad.  313.  [In  the  case 
of  Ex  parte  Goldiug,  Davis  &  Co.,  Limited,  13  Ch.  D.  628,  it  was  held  that  the 
signature  by  the  ship-master  of  the  bill  of  lading  made  out  in  the  name  of  a 
sub-purchaser  did  not  terminate  the  transitus  indicated  by  the  original  pur- 
chaser.] 

The  same  law  holds  in  the  case  of  goods  which,  when  sold,  are  on  a  wharf 
or  in  a  dock,  where  they  are  intended  to  remain  until  taken  away  by  the 
buyer.  In  such  a  case  the  goods  are  considered  as  constructively  in  transitu 
(see  the  remarks  of  Lord  Abinger  in  Gibson  v.  Carruthers,  8  M.  &  W.  341), 
and  the  right  of  the  vendor  to  stop  in  transitu  remains  so  long  as  the  goods 
are  not  taken  away,  and  the  warehouse  keeper  or  dock  owner  has  not  become 
the  agent  of  the  buyer,  see  Dixon  v.  Yates,  5  B.  &  Ad.  313 ;  Tanner  v.  Scovell, 
14  M.  &  W.  28,  where  the  wharfinger,  upon  orders  received  direct  from  the 
seller,  to  weigh  and  deliver  the  goods  to  the  buyer,  had  accordingly  furnished 
the  seller  with  the  weights  and  delivered  a  portion  of  the  goods  to  the  buyer's 
order;   yet,  inasmuch  as  the  wharfinger  had   not  received  warehouse  rent 


1090  LICKHAUUOW    V.    MAS«jN. 

from  the  hnyer,  or  trnnsfi-m-d  the  kooiN  Into  liis  name,  or  done  any  other 
act  to  becoiuf  hiH  uycnl,  lla-  rest  of  the  nooils,  without  rf^ard  to  whi-lhrr  the 
propiTti/  hi  tlienj  hiid  vested  hi  thf  luiyer  or  not,  wen*  eoiisUU-retl  subject  to 
the  selk-r's  rifjlit  of  stopphi^  in  tranidtu  ;  and  l.iukimitnn  v.  .\thtrt>>n,  H  Scott, 
N.  It.  .W;  7  M.  &  Gr.  :W0,  S.  C,  where  the  weller,  wlio  luul  himself  bought 
the  fjoods  of  the  Importer,  In  whose  name  they  were  warehoused  in  the  Wi-.st 
India  Docks,  jiiwc  the  buyer  a  delivery  order  upon  which  the  dock  coni[iaiiy 
refused  to  act,  because  not  trlven  l)y  the  iniporter;  and  upon  the  »ubse<|fieni- 
Insolvency  of  the  buyer,  tiie  seller  liiniself  olituined  a  delivery  order  froi;) 
the  importer  and  possessed  himself  of  the  i^fiods ;  [ami  see  Iinftfrinl  Bunk  v. 
London  d-  St.  K.  Dork  Co.,  .".  ("Ii.  1).  r.).>,  4t;  L.  .1.  Ch.  X\o]. 

The  (niestion  in  all  such  eases  seems  to  be,  whether  the  warehouseman  at 
the  time  of  the  stoppaj^e  lield  tlie  gotKls  (J.h  ui/tnt/or  thf  f<>/i«j;/H«r,  or  an  mj*  nt 
fur  the  consignee. 

As  to  the  effect  of  a  delivery  order  l)oth  with  respect  to  stoppiure  in  transitu 
and  otherwise,  see  Ilarman  v.  Aml»'rtinn,2  Camp.  24:t;  Stonardv.  iJitnkin, 
Ibid.  :H4;  Drnt'ill  v.  Hum,  3  B.  &  V.  42:5;  [Farina  v.  I/omr,  U\  M.  &  \V.  Hi);] 
Searlf  v.  Kftces,  2  Ksp.  51)H  (f/M/pr*')  ;  Akrnnan  v.  Ilinnithroj,  1  C  &  IV  h'.\; 
Turkcr  V.  Huston,  2  C.  &  P.  H« ;  Siranwirk  v.  Sothiron.  y  A.  A.  &  K.  Hl).'> ;  Mil- 
linij  V.  Kdshair,  1  C.  &  .1.  Ih4  ;  M'Eiran  v.  Smith,  2  II.  of  Lords,  'Mo;  [/>ixon 
V.  liorill.  ;i  Macq.  II.  of  L.  1  ;  (loiltit  v.  Hose,  17  C.  H.  229;  Pi-arson  v.  Dairson, 
E.  n.  v^  K.  44H;  Kiiiijs/onl  Y.  Mernj,  1  H.  &  N.  oO;!;  C'„ventr>j  v.  tilailMone.  L. 
K.  r.  K(|.  44,  :17  L.  J.  Ch.  45>2 ;    Ynunn  v.  Lambert,  \..  U.  3  P.  C.  142,  .TJ  L.  .1.  1'. 

C.  21 ;  Imperial  Hank  v.  London  iC  A'/.  A'.  Dork  Co.,  5  Ch.  I).  r.>5 ;  4t>  L.  J.  Ch. 
835;  Merchant  Banking  Co.  v.  Phoenix  Co.,  5  Ch.  I).  20.>,  40  L.  J.  Ch.  418;  40 
&  41  Vict.  c.  3U,  s.  5]. 

If  the  vendor  allow  the  vendee  to  take  possession  of  p!irt  of  the  ijood.H 
sold  under  an  entire  contract,  without  intending;  to  retain  tlie  rest,  his  riirht 
to  stop  in  transitu  is  ;;one.  Hammond  v.  Aiulrson,  1  N.  K.  (ID.  See  Sluhij  v. 
Hatfward,  2  H.  HI.  504;   Hanson  v.  Meyer,  «  Kast,  G14  [Ex  parte  (Jihhe.n,  1  Ch. 

D.  101;  45  L.  J.  Hank.  10.  See,  however,  Bolton  v.  The  Lancashire,  dr..  Hail. 
Co.,  L.  R.  1  C.  P.  431.  35  L.  .1.  C.  P.  137].  Hut  it  is  otherwise  if  he  do  intend 
to  retain  the  remainder-  Bunny  v.  Poynts,  4  H.  &  Ad.  570;  .see  Wentworth  v. 
Outhicaitc,  10  M.  &  W.  451;  Tanntr  v.  Scovell,  11  M.  &  W.  28.  [Ax  parte 
Chalmers,  L.  R.  8  Ch.  289,  42  L.  J.  Ch.  37.] 

It  [has  been]  said  that,  primii  facie,  a  delivery  of  part  imports  an  intention 
to  deliver  the  whole.  Per  Taunton,  .!.,  Belts  v.  (rililiins,  2  \.  &.  E.  73.  That 
diW?<m,  however,  which  had  l)een  questioned  by  the  author  in  Ids  work  on  mer- 
cantile law  (rtftli  edition.  488,  530).  has  been  overruled  l)y  tlie  Court  of  Ex- 
chequer in  Tanner  v.  Scorell,  14  M.  &  \V.  28,  [and  in  Ex  parte  Cooper,  11  Ch. 
D.,  at  p.  73,  Lord  Esher,  M.  R.,  (then  Brett.  L.  J.,)  laid  it  down  -that  those 
who  rely  upon  the  part  delivery  as  a  constructive  delivery  of  the  whole  are 
bound  to  show  that  the  part  delivery  took  place  under  such  circumstances  as 
to  make  it  a  constructive  delivery  of  the  whole,"  and  in  Kemp  v.  Falk,  7 
App.  Ca.  573,  Lord  Blackburn  says  that  "  if  either  of  the  parties  dissent  the 
part  delivery  is  not  a  constructive  delivery  of  the  whole,"  and  that  he  "  rather 
thinks  the  onus  is  upon  those  who  say  it  was  so  intended"].  In  Tanner  v. 
Scorell  it  was  laid  down  that  if  the  buyer  takes  possession  of  part,  not 
meaning  tliereby  to  take  possession  of  tlie  whole,  but  to  separate  that  part 
only,  it  puts  an  end  to  the  transitus  only  with  respect  to  that  part  and  no 
more.  In  that  case,  under  a  ireneral  order  to  deliver  the  goods,  the  l)uyer 
procured  the  actual  delivery  of  certain  portions  oftliein  which  he  had  resold, 


LICKBARROW    V.    MASON.  1097 

and  the  delivery  of  those  portions  was  held  not  to  operate  as  a  delivery  of 
the  whole,  or  to  aflect  the  vendor's  right  as  to  the  rest. 

And  in  Jones  \.  Jones,  8  M.  &  W,  431,  the  assignee  of  a  cargo  of  goods 
under  a  trust  deed  took  possession  of  part  of  the  cargo  upon  its  arrival,  and 
directed  the  rest  to  be  conveyed  to  a  designated  place,  with  the  intention  of 
obtaining  possession  of  the  whole  for  tlie  purposes  of  the  trust ;  and  it  was 
held  that  such  taking  possession  of  part  did  put  an  end  to  the  transit ;  but  it 
was  in  that  case  assumed  to  be  clear  law  that  the  mere  delivery  of  part  to 
the  buyer,  if  he  means  to  separate  that  part  from  the  remainder,  does  not 
amount  to  a  delivery  of  the  whole  so  as  to  defeat  the  right  to  stop  in  transitu. 

In  Tanner  v.  Scovell,  supra,  the  whole  question  was  stated  to  depend  on  the 
intention  of  the  buyer  ;  but  perhaps  that  statement  was  intended  to  apply  only 
to  cases  like  Tanner  v.  Scovell,  where  it  Avas  in  the  power  of  the  buyer  at  the 
time,  if  he  pleased,  to  take  all.  [See  the  judgment  in  Bolton  v.  The  Lan- 
cashire, &c.,  Rail.  Co.,  L.  R.  1  C.  P.  431 ;  31  L.  J.  C.  P.  137,  where  the  buyer  took 
part,  having  the  power  to  take  all,  and  refused  to  take  the  rest,  and  the  right 
to  stop  was  lield  not  to  be  gone,  and  Exparte  Catling,  29  L.  T.  N.  S.  431,  also 
per  Lord  Blackburn,  in  Kemp  v.  Falk,  7  App.  Ca.  586,  cited  sripra.  In  Ex 
parte  Gihbes,  1  Ch.  D.  101 ;  45  L.  J.  Bank.  10,  it  was  held  that  there  was  a 
constructive  delivery  to  the  purchaser  of  the  whole  of  the  goods  by  a 
delivery  of  part.  In  Ex  parte  Cooper,  sup.  it  was  held  that  part  delivery  did 
not  amount  to  a  constructive  delivery  of  the  whole  where  freight  had  not 
been  paid  on  part  of  the  undelivered  goods,  and  in  Kemp  v.  Falk,  7  App.  Ca. 
573,  52  L.  J.  Ch.  167,  the  facts  were  also  held  to  exclude  the  notion  of  a  con- 
structive delivery  of  the  whole  cargo. 

It  was  once  thought  that,]  although  the  determination  of  the  transit  puts 
an  end  to  the  vendor's  right  to  stop  the  goods,  the  vendee  [could  not] 
anticipate  its  natural  determination,  as  for  instance,  by  going  to  meet  the 
goods  at  sea.  Hoist  v.  Poionall,  1  Esp.  240.  Vide  tamen,  the  judgment  in 
Mills  V.  Ball,  2  B.  &  P.  461;  Oppenheim  v.  Eussell,  3  B.  &  P.  54;  Foster  v. 
Frampton,  6  B.  &  C.  107;  and  ]VJiitehead  v.  Anderson,  9  M.  &  W.  518,  where 
it  was  laid  down  as  indisputable,  that  if  the  vendee  take  tlie  goods  out  of  the 
possession  of  the  carrier  into  his  own  before  their  arrival,  the  right  to  stop 
in  transitu  is  at  an  end;  though  if  he  were  to  take  them  without  the  consent 
of  the  carrier,  it  might  be  a  wrong  to  him  for  which  he  Avould  ha-^-e  a  right  of 
action.  [See  also  The  London  and  North  Western  Rail.  Co.  v.  Bartlett,  7  H. 
&  N.  400.] 

The  carrier  cannot  prolong  the  transit  of  the  goods  after  arrival  at  the 
port  of  destination,  by  refusing  to  give  them  up  to  the  consignee  upon 
demand  and  tender  of  freight.  Bird  v.  Brown,  4  Exch.  786  [but  "Transit 
embraces  not  only  the  carriage  of  the  goods  to  the  place  where  delivery  is  to 
be  made,  but  also  delivery  of  the  goods  there  according  to  the  tenns  of  the 
contract  for  conveyance,"  per  Lord  Fitzgerald  in  Kemp  v.  Falk,  7  App.  Ca.  at 
p.  588.] 

Nor  can  the  vendor's  right  be  defeated  by  tlie  enforcement  of  the  claim 
against  the  vendee,  as,  for  instance,  by  process  of  foreign  attachment  at  the 
suit  of  his  cretlitor,  or  by  the  carrier's  assertion  of  a  general  lien  against 
him.  Smith  v.  Goss,  1  Camp.  282 ;  Butler  v.  Woolcot,  2  N.  R.  64 ;  Nicholls  v. 
Lefevre,  2  Bing.  N.  C.  83.  [And  see  Mercantile  Bank  v.  Gladstone.,  L.  R.  3  Ex. 
283;  37  L.  J.  Ex.  130.] 

To  make  a  notice  effective  as  a  stoppage  in  transitit,  it  must  be  given  to  the 
person  who  has  the  immediate  custody  of  the  goods ;  or  if  given  to  the  prin- 


1UU8  Li(i<HAi:i:<»\v    v.   mason. 

clpal  whose  servant  has  tho  custody,  it  must  he  ;jivcn  at  sucli  a  tiuic  anil 
uiulor  sucii  ciriuuistaufi's  that  thi-  principal,  by  the  fxcrclso  of  rcasunalile 
dilifjence,  may  coniinuuicatc  it  to  Ills  servant,  in  time  to  prevent  the  delivery 
of  the  {^ootls  to  the  cousi;;nee.  \\  hitrhfad  v.  AnilfrnDii,  'j  M.  &.  W.  5lM.  [See 
also  Ex  jxtrtf  W'atnon,  in  re  Locf,  5  Ch.  I).  35;  4<!  L.  J.  IJank.  'J7.  anil  J'hrljm, 
Stokes,  (tiid  Co.,  v.  Coinhtr,  25)  C-h.  I).  813.  As  to  whether  there  Is  a  duty  on 
the  shipowner  to  c<immunicate,  see  per  Lord  HramwcU,  A'jr  p<irt<^  /-'nH:,  14  (h. 
D.  455;  per  Lord  lilackburn,  Kemp  v.  Fulk,  7  App.  ('a.  585.] 

A  stoppajife  by  an  unauthorised  person  profe.ssinj;  to  act  for  the  seller  Is 
Inoperative,  though  ratilled  by  the  seller,  if  such  ratification  l>e  after  the 
period  durin;;  which  tlie  seller  himself  could  have  stopped  in  tntngitu.  Bird 
v.  Uroirn,  4  Kxch.  TsC. 

The  second  vendee  of  a  chattel  cannot,  yenerally  speakiuir,  stand  in  a 
better  situation  than  his  immediate  vendor.  ■Small  v.  Monte,  'J  Uiu^.  574. 
IKerne  v.  Deslaudes,  10  C.  H.  N.  S.  2U5 ;  30  L.  .1.  C.  P.  21)7,  S.  C. ;  Shiridan  v. 
New  Qumj  Co.,  4  C.  B.  N.  S.  G18;  Srhitstrr  v.  M'h'ellnr,  7  E.  &  li.  704.]  If, 
therefore,  the  vendee  sell  tlie  ^oods  before  they  have  been  delivered  to  him, 
he  sells  thcin,  generally  speakini;,  subject  to  the  vendor's  ri}jht  to  stop 
in  transitu.  Dixon  v.  Yaten,  5  li.  &  Ad.  313;  Jinkijn.H  v.  I'xhorne,  8  Scott, 
N.  U.  505;  7  M.  &  (I.  (178,  S.  C.  [though  see  per  Lord  Kltznerald,  Kemp  v. 
Fdlk,  7  App.  Ca.  at  j).  .V.)0.  Subject  to  the  vendor's  rli;hts  the  .subvendce 
woulil  of  course  be  entitieil  to  the  ;;o<»ils,  Kemp  v.  Fnlk,  itld  sup.  ;  Ex  parte 
Goldiiir/,  Davi.'t,  and  Co.,  Limited,  13  C'li.  1).  C>'2H.] 

But  on  [the  above]  ride  the  principal  ca.se  has  engrafted  an  exception;  for 
the  second  and  main  point  in  Liekhnrrow  v.  .Ma-son  is,  that  the  vendee  nuiy. 
by  nejfotlatin^  the  bill  of  ladin<;  to  a  honci  fide  transferee,  defeat  the  vendor's 
rifjlit  to  stop  in  transitu.  [.And  the  recent  act  to  amend  the  Factors'  .Vets.  40 
&  41  Vict.  c.  31),  has  extended  this  doctrine  by  enactinfr  (s.  5)  that:  "  Where 
any  document  of  title  to  jjoods  has  been  lawfully  indorsed  or  otherwise 
transferred  to  any  person  as  a  vendee  or  owner  of  the  fjoods,  and  such  person 
transfers  such  document  by  indorsement  (or  by  delivery  wliere  the  document 
is  by  custom,  or  by  its  express  terms  transferable  by  delivery,  or  makes  the 
goods  deliverable  to  the  bearer),  to  a  person  who  takes  the  .same  ^o/ja  .rt"(/e 
and  for  valuable  consideration,  the  last-mentioned  transfer  shall  have  the 
same  eft'ect  for  defeating  any  venilor's  lien  or  risjht  of  stoppage  in  transitu 
as  the  transfer  of  a  bill  of  lading  has  for  defeating  the  right  of  stoppage  in 
transitu."  As  to  what  is  or  is  not  a  document  of  title  to  goods,  see  Cunn  v. 
Bnlckoio,  L.  R.  10  Ch.  491;  41  L.  .1.  Ch.  732;  Kemp  v.  Folk,  7  App.  Ca.  573; 
52  L.  J.  Ch.  1G7.] 

A  succinct  history  of  the  law  on  this  point  is  given  by  Lord  Tenterden,  in 
his  admirable  work  on  Shipping,  [p.  388,  11th  cd.  by  Slice,  442,]  where  he 
remarks,  tliat  "the  earliest  mention  of  the  subject  in  our  law  books  is  the 
case  of  Evans  v.  Martlett,  1  Lord  Kaym.  271,  12  Mod.  15G;  in  Avhich  Holt, 
C.  J.,  said  '  the  consignee  of  a  bill  of  lading  has  such  a  property  that  ho  may 
assign  it  over : '  and  Shower  said  '  that  it  had  been  adjudged  so  in  the 
Exchequer.'  But  in  that  case,  the  efl'ect  of  such  an  assignment  was  not 
properly  before  the  court,  and  does  not  appear  to  have  been  discussed  or 
argued;  and  the  case  supposed  to  be  referred  to  by  Shower  has  not  been 
found.  In  the  case  of  Stiee  \.  Prescot,  1  Atk.  246,  the  right  of  the  pawnee  of 
the  bill  of  lading  as  against  the  consignor  was  not  noticed  or  insisted  upon." 
He  then  proceeds  to  comment  on  the  cases  of  Wright  v.  CampbeU,  204fi.  1  Bl. 
628 ;  Ilibbert  v.  Carter,  1  T.  R.  445  ;  Caldwell  v.  Ball,  Ibid.  205 ;  and  Lickbarrow 


LICKBAEROW   V.   MASON.  1099 

V.  Mason;  and  concludes  by  stating,  [p.  435,  11th  ed.],  that  "  that  cause  was 
tried  again,  and  that  the  Court  of  King's  Bencli.  at  the  head  of  wliich  Lord 
Kenj^on  had  in  tlie  meantime  been  placed,  and  who  had,  in  another  cause, 
expressed  his  approbation  of  the  first  judgment  in  this  case,  as  being  founded 
on  principles  of  justice  and  common  honesty,  again  decided  the  case  without 
argument,  in  conformity  to  tlie  first  decision  of  that  couit;  5  T.  E.  683;  and 
in  order  tliat  the  question  might  again  be  carried  to  the  other  tribunals, 
another  writ  of  error  was  brought;  but  it  was  afterwards  abandoned,  and  it 
is  now  the  admitted  doctrine  in  our  courts  that  the  consignee  may,  under  the 
circumstances  before  stated,  confer  an  absolute  right  and  property  upon  a  third 
person,  indefeasible  by  any  claim  on  the  part  of  the  consignor." 

[To  defeat  the  vendor's  right  of  stoppage,  the  indorsement  of  the  bill  of 
lading  must  be  for  value.  In  Rodger  v.  The  Comptoir  d'Escompte  de  Paris, 
L.  R.  2  P.  C.  393 ;  38  L.  J.  P.  C.  30,  it  was  held  by  the  Privy  Council  that  an 
antecedent  debt  was  not  a  sufficient  consideration  to  defeat  the  I'ight  of  stop- 
page in  transitu.  But  the  Coui't  of  Appeal  have  expressly  dissented  from  this 
case.  Leask  v.  Scott,  2  Q.  B.  D.  376;  46  L.  J.  Q.  B.  329,  576.  In  the  former 
case,  Lyall,  Still  &  Co.  being  pressed  by  the  respondents,  who  were  their 
creditors  to  a  large  amount,  executed  an  assignment  of  all  goods  and  bills  of 
lading,  or  other  documents  for  goods  to  arrive  in  December,  1866.  In  pursu- 
ance of  their  agreement  in  tlie  assignment,  L.  S.  &  Co.,  on  the  subsequent 
arrival  of  goods,  indorsed  tlie  bills  of  lading  to  the  respondents  without 
receiving  any  consideration  for  such  indorsement  except  an  existing  debt  and 
the  release  of  an  antecedent  agreement  bj'  L.  S.  and  Co.  to  furnish  bills  and 
shipping  documents,  on  the  faith  of  which  the  advances  were  made  by  the 
respondents  to  L.  S.  &  Co.  At  the  time  of  the  assignment  it  was  notorious 
that  the  assignors  were  in  difficulties ;  and  by  the  assignment,  if  not  before, 
they  were  made  insolvent.  It  was  held  that  the  indorsement  of  the  bills  of 
lading  did  not  defeat  the  vendor's  right  to  stop  in  transitu.  See  The  Char- 
tered Bank  of  India  v.  Henderson,  L.  R.  5  P.  C.  501,  a  somewhat  similar  case, 
in  which  it  was  held  that  the  indorsement  was  for  a  sufficient  consideration. 

In  Leask  v.  Scott  (supra)  the  facts  were  as  follows  :  On  the  22nd  December, 
1875,  Geen,  Stutchbuiy  &  Co.,  fruit  merchants  in  London,  agreed  to  purchase 
of  the  defendants  a  shipment  of  nuts  from  Naples  to  London,  by  the  Trini- 
dad, "reimbursement  as  usual,"  which  was  by  acceptance  at  three  months  on 
delivery  of  the  shipping  documents.  On  Saturday  the  1st  of  January,  1876, 
being  prompt  day,  Geen  &  Co.  being  already  indebted  to  the  plaintiff',  their 
fruit  broker,  in  between  10,000Z.  and  11,000?.,  Mr.  Geen  applied  to  him  for  a 
further  advance  of  2,000Z.  The  plaintiff"  said,  "You  may  have  it,  but  you 
must  first  cover  up  your  account."  Geen  said  he  would  give  him  cover,  and 
the  plaintiff^'s  cashier  at  once  handed  Geen  a  clieque  for  2,000Z.  On  Tuesday 
the  4th  day  of  January,  the  bill  of  lading,  dated  the  29th  of  December,  1875, 
indorsed  by  defendants  in  blanlv  (the  nuts  being  made  deliverable  to  tlieir 
order),  was  handed  by  tlieir  agent  to  Geen  &  Co.,  and  they  at  once  accepted  a 
draft  for  the  price,  224/.  16s.  2d. :  and  on  the  next  day  Geen  &  Co.  handed  to 
the  plaintiff"  the  bill  of  lading  and  other  similar  documents  to  the  value  of 
about  5,000Z.  in  performance  of  their  promise  on  the  Saturday  to  give  the 
plaintiff"  cover.  On  Saturday  the  8th  of  January,  Geen  &  Co.  stopped  pay- 
ment. The  Trinidad  arrived  off"  Liverpool  on  the  3rd  of  February,  and  the 
defendants  sought  to  stop  tlie  nuts  in  transitu,  the  plaintiff"  claiming  them 
under  the  bill  of  lading.  The  nuts  were  landed,  warehoused,  and  sold,  the 
price  being  held  to  abide  the  result  of  the  interpleader  action. 


1100  LICIOJAliUoW    V.    MASON. 

In  answer  to  qncstions  by  the  jiul^ijo,  the  jury  found  tlmt  the  plaint  ill" 
received  tlie  bill  of  lading  honestly  and  fairly  :  that  valuul)le  con.sidi-ratlon 
was  given  on  the  uudurstaiidiug  of  security  being  given  :  and  thai  tlu-  security 
given  was  to  secure  the  2,UU0/.,  and  also  the  old  account. 

On  behalf  of  the  defendant  it  was  contended,  on  the  authority  of  //<»(/;/(•>•  v. 
The  Ciirii/ittiir  d'Kscumiiti-  tie  I'dris,  that  the  c(|Uitable  right  of  stoppage  pro- 
vailed  against  a  legal  title  acfpiircd  by  receiving  the  bill  of  lading  for  a  eon- 
siileration,  no  part  of  which  was  caused  to  be  given  by  the  bill  of  lading. 
The  Court  of  Api)eal,  whilst  of  opinion  that  the  defendant's  argument  was 
the  same  as  the  rutin  di'cidouU  in  Ilodijcr  v.  Tin'  ('mujitnir  d'h'.icoinpti-  de  J'<tn.t, 
distinctly  declined  to  follow  that  case,  holding  that  there  was  "  not  a  trace  of 
Buch  distinction  between  cases  of  past  and  present  ct)nsideration  to  i)e  found 
in  the  books:  and  further,  that  practically  such  a  past  consideration" 
{qxuvre,  transaction)  "  as  was  then  uniler  discussion  had  always  a  present 
operation  by  staying  tiie  liand  of  tlie  creditor."  The  judgment  of  Field,  J., 
based  upon  the  above  case  of  liodijrr  v.  Thv  Cotnjitnir,  it'-.,  wjls  accordingly 
reversed.  Another  view  of  both  of  these  cases  uugitt  |)erhaps  l)e  that  the 
giving  of  security  should  l)e  treated  as  relating  back  to  the  agreement  to  give 
it,  in  which  case  it  would  have  been  given  for  a  present  consiileration. 
Quwre,  how  far  I.i'ask  v.  SaAt  is  consistent  with  or  overrules  Simldimj  v. 
littding,  (;  Heav.  37(5. 

Further,  "although  the  shipper  may  have  indorsed  in  blank  a  bill  of  lad- 
ing, deliverable  to  his  assignees,  his  right  is  not  allected  by  an  appropriation 
of  it  without  his  authority.  It  is  not  a  negotiable  instrument  like  a  bill  of 
exchange."  Per  Cam|)bell,  C  J.,  (inrncij  v.  J3<  hrcnd,  :5  K.  &  H.  iV.V.l.  See  fur- 
ther that  case,  also  Srhunter  v.  M'KelUtr,  7  K.  &  B.  70-t ;  {Tin'  Marii'  Jnmph) 
Pease  v.  Glouhcr,  L.  U.  1  P.  C.  219;  35  L.  J.  P.  C.  r,t!;  Ilitt/n-sitifj  v.  LaiiKj,  L. 
R.  17  Eq.  1)2;  4:5  L.  J.  CMi.  233;  Gilbert  v.  (iuifjiion,  h.  11.  8  Ch.  1(5;  (inhnrron 
V.  Kreeft,  L.  R.  lo  Mx.  274  :  4  I  L.  J.  Kx.  238;  Oij'j  v.  Shntcr,  L.  U.  10  C.  P.  159; 
1  C.  P.  I).  47;  43  L.  J.  C.  P.  44;  Mirahitn  v.  Imperial  Ottmuan  Bank,  3  Kx.  D. 
164;  47  L.  J.  Ex.  418;  Ghjn  v.  E.  tC  W.  India  Dock  Co.,  7  App.  Ca.  591,  52  L. 
J.  Q.  B.  14(5,  as  to  what  state  of  facts  has  been  held  sufHcient  to  establish  the 
ability  of  the  imlorser  to  confer  a  good  title  on  a  hona  fide  indorsee,  and  also 
the  Factors'  Acts,  which  will  be  more  fully  noticed  hereafter.] 

If  the  assignee  of  a  bill  of  lading  act  malU  fidf  ;  for  instance,  if  he  knows 
that  the  consignee  of  the  goods  is  insolvent,  and  takes  the  assignment  of  the 
bill  of  lading  for  the  purpose  of  defeating  the  right  to  stop  in  transitu,  and 
so  defrauding  the  consignor  out  of  the  price;  he  will  be  held  to  stand  in  the 
same  situation  as  the  consignee  :  and  the  consignor  will  preserve  his  right  of 
stoppage.  Per  Lord  Ellenborough,  delivering  judgment  in  Cumniiufj  v. 
Brown,  9  East,  514. 

And  if  tlie  bill  of  lading  contain  a  condition,  ex  (jr.,  if  it  be  indorsed  upon 
it  that  the  goods  are  to  be  delivered,  provided  E.  F.  pay  a  certain  draft,  e^■ery 
indorsee  takes  it  suljject  to  that  condition,  and  will  have  no  title  to  the  goods, 
unless  it  be  performed.     Barrow  v.  Coles,  3  Camp.  92. 

[Where  the  sliipper  takes  and  keeps  in  his  own  or  his  agents'  hands  a  bill 
of  lading,  making  the  goods  deliverable  to  his  own  order  to  protect  himself, 
the  hold  retained  nuder  the  bill  of  lading  is  not  merely  a  riglit  to  retain 
possession  till  the  conditions  upon  which  it  was  given  are  fultilled,  but  in- 
volves in  it  a  power  to  dispose  of  the  goods  on  the  vendee's  default,  so  long 
at  least  as  the  vendee  continues  in  default,  Oyg  v.  Shutcr,  1  C.  P.  D.  47  ;  44  L. 
J.  C.  P.  161.] 


LICKBARROW   V.    MASON.  1101 

Where  the  goods  are  shipped  under  such  circumstances  as  to  show  an  in- 
tention tliat  tlie  property  or  riglit  of  possession  should  not  vest  in  the  con- 
signee until  some  further  act  is  done,  such  as  payment,  or  handing  over  the 
bill  of  lading,  no  question  of  stoppage  in  transitu  can  arise  before  that  act  is 
done.  See  Turnery.  Liverpool  Docks,  G  Exch.  543;  [^Sheridan  v.  Xew  Quwj 
Co.,  4  C.  B.  N.  S.  618.] 

In  cases  where  a  bill  of  lading  may  be,  and  has  been,  pledged  by  the  con- 
signee of  the  goods,  as  a  security  for  his  OAvn  debt,  the  legal  right  to  the 
possession  of  the  goods  passes  to  the  pledgee ;  but  the  right  to  stop  them  in 
transitu,  in  case  the  consignee  should  become  insolvent,  is  not  absolutely 
defeated,  as  it  is  in  the  case  of  a  sale  of  the  bill  of  lading  by  the  consignee ; 
for  the  vendor  may  still  resume  his  interest  in  them,  subject  to  the  rights  of 
the  pledgee,  and  will  liave  a  right,  at  least  in  equity,  to  the  residue  which  may 
remain,  after  satisfying  the  pledgee's  claim.  And  further,  if  the  goods  com- 
prised within  the  lull  of  lading  be  pledged  along  with  other  goods  belonging 
to  the  pledgor  himself,  the  vendor  will  have  a  right  to  have  all  the  pledgor's 
own  goods  appropriated  to  the  discharge  of  the  pledgee's  claim  before  any  of 
the  goods  comprised  within  the  bill  of  lading  are  so. 

This  was  decided  In  re  Westrdnthus,  5  B.  &  Ad.  817,  where  Lapage  &  Co. 
having  pui'chased  oil  from  Westzinthus,  paid  for  it  by  acceptance:  and  bc' 
iug  in  possession  of  the  bills  of  lading,  pledged  them  with  Hardnian  &,  Co., 
as  a  security  for  certain  advances.  Lapage  &  Co.  became  bankrupt,  and 
their  acceptance  in  the  plaintiff's  favour  was  dishonoured.  At  the  time  of 
their  bankruptcy  they  owed  Hardman  &  Co.  9271?.  on  account  of  advances; 
as  a  security  for  which  they  held,  bcf^ides  the  1)111  of  lading,  goods  to  the 
value  of  9961?.  Is.  7f?.,  belonging  to  Lapage  himself.  The  court  held  that 
Westzinthus,  who  had,  upon  the  bankruptcy  of  Lapage  &  Co.,  given  notice  to 
the  master  of  the  ship  that  he  claimed  to  stop  the  oil  in  transitu,  had  alright 
to  insist  upon  the  pi'oceeds  of  Lapage's  own  goods  being  appropriated  to  the 
discharge  of  Hardman's  lien,  and,  as  they  proved  sufficient  to  satisfy  it,  had 
a  right  to  receive  the  entire  proceeds  of  his  oils. 

"  As  Westzinthus,"  said  Lord  Denman,  delivering  the  judgment  of  the 
court,  "  would  have  had  a  clear  right  at  law  to  resume  the  possession  of  the 
goods  on  the  insolvencj'  of  the  vendee,  had  it  not  been  for  the  transfer  of  the 
property  and  right  of  possession,  for  a  valuable  consideration  to  Hardman,  it 
appears  to  us,  that  in  a  court  of  equity,  such  transfer  would  be  considered  as 
a  pledge  or  mortgage  only ;  and  Westzinthus  would  be  considered  as  having 
resumed  his  former  interest  in  the  goods,  subject  to  that  pledge  or  mortgage, 
in  analogy  to  the  common  case  of  a  mortgage  of  real  estate,  which  is  con- 
sidered as  a  mere  security,  and  the  mortgagor,  the  owner  of  the  land.  AVe, 
therefore,  think  that  Westzinthus,  by  his  attempted  stoppage  in  transitu,  ac- 
quired a  right  to  the  goods  in  equity  (subject  to  Hardman's  lien  thereon),  as 
against  Lapage  and  his  assignees,  who  are  bound  by  the  same  equity  that 
Lapage  himself  was ;  and  this  view  of  the  case  agrees  with  the  opinion  of 
Mr.  Justice  Buller,  in  his  comment  on  the  case  of  Snee  v.  Present  in  Lickbar- 
row  V.  Mason.  If  then  Westzinthus  had  an  equitable  right  to  the  oil  subject 
to  Hardman's  lien  thereon  for  his  debt,  he  would,  by  means  of  his  goods, 
have  become  a  surety  to  Hardman  for  Lapage's  debt ;  and  would  then  have  a 
clear  equity  to  oblige  Hardman  to  have  recourse  against  Lapage's  own  goods 
deposited  with  him  to  pay  his  debt  in  ease  of  the  surety.  And  all  the  goods, 
both  of  Lapage  and  Westzinthus,  having  been  sold,  he  would  have  a  right  to 
insist  upon  the  proceeds  of  Lapage's  goods  being  appropriated,  in  the  first 


1102  LR'KllAKUoW    V.    MASON. 

InAtance,  to  the  payment  of  the  drht."  [Soo  tlils  last  point  followwl  In  Ex 
partf  Al»lnn,  L.  K.  4  Ch.  ItJs;  uud  set-  (.'in'futrtj  v.  (JlndMnnr,  L.  K.  i;  rj|.  44;  37 
L.  J.  C'h.  4112] 

Spiililhuj  V.  liitiUnij,  <!  Mi-av.  ;{7«!,  <"onllriiis  W'l'stzintlms's  vnsv,  nrnl  hIiows 
tliat  thf  ijooils  lutnmU  hf  rftninftl  an  gernriti/  fur  n  yrnernl  txtlanre  af  arrnuHt, 
but  only  for  tin*  spi'cltlc  advance  made  upon  seeurlty  of  the  bill  of  ladinf(. 
[But  compare  as  to  the  latter  point,  Itiuliji-r  v.  Thf  Comptoir  tCHiirinnpte  dti 
PdriH  overrided  by  Lfnnk  v.  Smtt,  aiilf,  p.  HOO.  In  Krmp  v.  Fnlk,  7  App.  Ca, 
57;J,  ')2  L.  .1.  V\\.  1(;7.  and  A'r  }mrtc  (inlilimj,  l)<irin  %{•  (%>„  LiinUeil,  i:\  Ch.  1). 
(i^M,  tlif  cases  of  Sptildimj  and  lludimj  and  K/  jntrtf  W'fgtziitlhua  are  followed 
and  approved.] 

Wlillst.  however,  the  in<lorsenient  of  a  1>111  of  ladini;  ndi;ht  defeat  the  rli;ht 
of  stoppa;;e  in  tninsitn,  still  l>efore  tlie  statute  is  i<.  I'.i  Vict.  c.  Ill,  the 
transfer  of  a  bill  of  hulini;  did  not,  like  that  of  a  bill  of  exchange,  confer  any 
rl{;ht  on  tin-  assii^nee  to  sue  upon  the  contract  expres.sed  thereliy.  'I7ii»npiiim 
V.  Duminy,  14  M.  &  W.  4o:J :   Ilntr.trd  v.  Sh'phi-rd,  9  C.  B.  TM\. 

That  statute,  howevt-r,  has  altere«l  the  law  in  this  respect.  By  the  first 
section  ri<;lits  of  action  and  Iiai>Hities  upon  tlie  bill  of  ladlnt;  are  to  vest  in 
and  l)ind  the  coiisi;;nce  or  indorsee  tn  trhmn  thf  prnpryttj  in  ttn  ijiiud.i  shuil  pass. 
[See  Fn.1-  v.  \i^tt,  ('.  II.  &  N.  ('..{O ;  :io  I,.  .1.  Kxi-li.  '.'.".'.»,  showini;  tliat  the  section 
was  not  intended  t<)  exonerate  tile  orii^inal  shipper;  Sfmrl  v.  .S7;/*/i.i<>//,  L.  U. 
1  ('.  r.  24M;  :\r,  L.  .].  V.  v.  147;  and  Thr  St.  Clnud,  Brown  &  Lush..  Adm.  Ca. 
4.  As  to  what  \n  prinn't/itcif  evidence  that  the  property  pa.s.Hed.  see  Dnirarhi 
V.  The  Anijlit-Eyijptian  Hunk,  L.  K  A  ('.  T.  I'.M);  :t7  L.  J.  ('.  P.  71;  and  see 
The  Freedom,  L.  R.  3  P.  C.  '.'.M. 

The  (piestion  wliether  hulorsciucnt  and  delivery  of  tlie  bill  of  Ijidinir  by  way 
of  security  for  an  advance  passes  "  tlic  property  in  tlie  jioods  "  witldn  tills 
section,  so  as  to  make  the  indorsee  liable  for  frei;jht,  lias  been  very  fully  dis- 
cussed in  linrdirk  v.  Snrr/l,  K)  l^.  B.  I).  IWi.l,  nu^.  H.  I),  l.'.lt.  and  U)  Ai)p.  Ca. 
74.  In  that  case  it  was  eventually  decided  by  the  House  of  Lords  tliat  where 
such  indorsement  and  delivery  operates  merely  by  way  of  pledjje,  .so  as  to 
give  a  special  jiropcrty  only  to  the  plodifee  and  not  as  an  assignment  of  the 
whole  property  in  tlie  ijooils,  the  pletlgee  is  not  an  Indorsee  to  whom  the 
property  passes  within  the  act.  -Vnd  aruitde  {^per  Lord  Selborne  at  p.  8'>,  and 
Lord  Blackburn  at  p.  OC),  it  would  l)e  tlie  .same  if  tlie  transaction  were  in 
fact  a  mortiraire.  though  that  point  was  not  decided  by  the  House  of  Lords 
(see  p.  103). 

The  pledgee  would,  however,  be  liable,  irrespectively  of  the  Act,  on  the 
bill  of  lading  if  and  when  he  should  take  delivery  of  the  goods  under  the  bill 
of  lading,  pir  Lord  Selborne,  ib.  at  pp.  Hd-.s;),  and  Allen  v.  C<>lt<irt,  31  W.  H. 
841,  and  48  L.  T.  944,  on  the  ground  that  the  fact  of  so  doing  is  evidence  of 
a  new  agreement  by  him  with  the  shipowner  to  comply  with  the  terms  of 
the  bill  of  lading.] 

By  the  second  section  it  is  provided  that  the  act  is  not  to  affect  the  right  of 
stoppage  in  transitu,  or  claims  for  freight  against  the  shipper  or  owner  of 
the  goods,  or  the  consignee  or  indorsee  as  owner,  or  by  reason  of  his  receipt 
of  the  goods.  It  should  seem  that  the  statute  has  not  altered  the  rule,  that 
the  indorsement  of  a  bill  of  lading  gives  no  better  right  to  tiic  indorsee  than 
the  indorser  himself  had,  and  that  in  this  respect  a  bill  of  lading  still  difl'ers 
from  a  bill  of  exchange  in  the  same  way  as  it  did  before  the  statute ;  see 
Gurnoii  v.  Behrend,  3  E.  &  B.  G22.  In  that  case  the  bill  of  lading  was  sent  in 
a  letter  from  a  shipper,  stating  that  he  had  drawn  against  the  consignment, 


LICKBAREOW   V.   MASON.  1103 

and  it  was  held  that  the  acceptance  of  the  draft  was  not  thereby  made  a  con- 
dition precedent  to  the  riglit  to  negotiate  the  bill  of  lading,  though  if  it  had 
been,  and  had  not  been  complied  with,  an  indorsement  of  the  bill  of  lading 
would  not  have  defeated  the  seller's  title.  And  see  Key  v.  Cotcsworth,  7  Exch. 
595;  [The  Argentina,  L.  R.  1  A.  &  E.  370,  and  the  cases  on  this  point  cited 
ante,  p.  810. 

If  the  shipper  indorses  the  bill  as  a  pledge,  and  whilst  it  is  so  held  the 
goods  are  misdelivered,  he  may,  on  reindorsement  of  the  bill  to  him  on  pay- 
ment of  the  advance  for  which  it  was  pledged,  sue  for  the  misdelivery.  Short 
V.  Simpson,  35  L.  J.  C.  P.  147;  L.  R.  1  C.  P.  248. 

The  rights  and  liabilities  of  the  consignee  or  indorsee  under  the  act,  pass 
from  him  by  indorsement  over.  Smnrthicaite  v.  WiUcins,  11  C.  B.  N.  S.  842; 
31  L.  J.  C.  P.  214;  if  the  indorsement  be  such  as  to  pass  the  property  under 
the  act,  Burdick  v.  Seidell,  supra. 

But  a  consignee  who  has  sold  the  goods,  but  has  not  indorsed  the  bill  of 
lading  to  the  purchaser,  remains  a  consignee  within  the  act,  so  as  to  be  liable 
under  the  bill  of  lading,  Foider  v.  Knoop,  4  Q.  B.  D.  299 ;  and  conversely  an 
indorsee  has  a  right  to  sue  thereon,  although  he  has  sold  the  cargo  before 
taking  proceedings :  The  ^farathon,  40  L.  T.  N.  S.  163.] 

The  third  section  provides  that  a  bill  of  lading  in  the  hands  of  a  consignee 
or  indorsee  for  value  without  notice  shall  be  conclusive  evidence  of  shipment 
against  the  master  or  other  person  signing  the  same,  notwithstanding  that  such 
goods,  or  some  part  thereof,  may  not  have  been  so  shipped,  provided  that  he 
may  exonerate  himself  in  respect  of  such  misrepresentation  by  showing  that 
it  was  caused  without  any  default  on  his  part,  and  wholly  by  the  fraud  of  the 
shipper,  or  holder,  or  some  person  under  whom  the  owner  claims.  [It  has 
been  held  that  this  section  does  not  estop  an  owner  who  has  not  personally 
signed  the  bill  of  lading.  Jessel  v.  Bath,  L.  R.  2  Ex.  267;  36  L.  J.  Ex.  149; 
M'Lean  v.  Fleming,  L.  R.  2  H.  L.  Sc.  App.  128;  Blanchet  v.  PowelVs  Llantwit 
Collieries  Co.,  L.  R.  9  Ex.  74;  43  L.  J.  Ex.  50;  Broivn  v.  Poicell  Coal  Co.,  L. 
R.  10  C.  P.  562 ;  44  L.  J.  C.  P.  289. 

See  as  to  the  negotiability  of  a  bill  of  lading  after  the  lauding  of  the  cargo 
at  the  port  of  destination.  Barber  v.  Meyerstein,  L.  R.  4  H.  L.  317;  39  L.  J. 
C.  P.  187.] 

A  factor  to  whom  a  pledge  was  consigned,  stood  in  a  difterent  position 
from  a  vendee  with  respect  to  his  power  to  pass  the  property  therein  by  an 
indorsement  of  the  bill  of  lading.  For,  though  he  might  bind  his  principal 
by  a  sale  thereof,  he  could  not  by  a  pledge,  that  not  being  within  the  usual 
scope  of  his  authority.  Martin  v.  Coles,  1  M.  &  S.  140;  Shipley  v.  Kymer, 
Ibid.  484;  Neiosom  \.  Thornton,  6  East,  17  [and  see  Thackrah  v.  Hardy,  25 
W.  R.  307]. 

But  by  statutes  4  Geo.  4,  c.  83,  6  Geo.  4,  c.  94,  5  &  6  Vict.  c.  39  [and  40  & 
41  Vict.  c.  39]  usually  called  the  Factors'  Acts,  the  law  upon  this  subject  was 
altered.  [As  to  sect.  1  of  6  Geo.  4,  c.  94,  which  does  not  deal  directly  with 
the  subject  of  this  note  but  with  the  position  and  authority  of  persons  in- 
trusted with  goods  and  of  persons  in  whose  names  goods  shall  have  been 
shipped,  see  Mildred  v.  Maspons,  8  App.  Ca.  874,  per  Lord  Blackburn.] 

By  sect.  2,  a  person  intrusted  icith,  and  in  possession  of  any  bill  of  lading, 
is  to  be  deemed  the  true  owner  of  the  goods  described  in  it,  so  far  as  to  give 
validity  to  any  contract  made  by  him,  for  the  sale  or  disposition  of  the  goods, 
or  any  part  thereof,  or  for  the  deposit  or  pledge  thereof,  or  ami  part  thereof, 
as  a  security  for  any  money,  or  negotiable  instrument,  provided  the  buyer, 


l|nl  LICKDAUKUW    V.    MASON, 

ilispoiue,  nr  pnwnco,  liavc  no  notice  hj-  the  bill,  or  otiierwlsc.  that  ht-  was 
not  till-  actual  Inma  Jiili-  owner  of  the  j;oot!s.  I'pon  the  ((Ucstlon  «ho  Is  to  Im? 
consulcred  a  '■  i»rHi)n  iiUnmltd"  within  the  ineaniii^  «»f  this  section,  see  t'litse 
V.  //i>l„t>n,  2  M.  &  li»U.  2:J;  l'hiUii>»  v.  UhIU,  «;  M.  i  \V.  tJUi ;  llnttirld  V, 
J'hiHii>s,\>  M.  &  \V.  <;47;  14  M.  &  \V.CG5;  12  CI.  &  Fin.  343;  Uunzi  v.  Strwart, 
5  Scott,  N.  U.  1  ;  4  M.  &  (i.  .•>25  [nuint-a  V.  Sieainatnt,  4  B.  &  S.  270;  32  L.  J. 
C.  n.  281  ;  Johnston  v.  Cm/if  Lyunnai»,  3  C.  P.  I).  32;  47  L.  J  C.  P.  241.  /x-r 
Hramwell,  L.  .1..  wlui  elaborately  shi>ws  that  •■  pi-rson  lntrnste<l"  means 
"  factor  or  ajjeiit  liitrnsteil  as  such."  As  to  the  iiatnre  of  the  agency,  see 
iii/ni,  p.  818] ;  and  as  to  what  Is  a  "  diaptixilion"  see  'J'nylor  v.  hijinrr,  3  K.  & 
Ad.  :i37. 

But  by  sect.  3,  If  the  deposit  or  ph-dije  lu*  as  a  security  for  a  pre-ejintiny 
demand,  the  depositee  »»r  pawnee  acipiires  oidy  tlie  same  Interest  in  them  that 
was  possesseil  by  the  person  making  tlje  deposit  or  pledjje.  [See  on  this  »ec- 
th)n  Jfirnn  v.  W'hidrorth,  L  U.  2  K<i  <;i»2 ;  Murnte  v.  (iumt,  L.  U.  4  Eq.  315; 
Kalti)ih(irh  V.  LftriM,  10  A  pp.  C'a.  (".17. 

As  to  the  4tli  section,  see  linima  v.  Smiinson,  Hiifirn.] 

Sect.  T)  enacts  that  any  person  may  ."ici-ept  such  i;o<nls  or  document  as  afore- 
said, on  deposit  or  pledge,  from  any  factor  or  a:;ent.  nonrithnt'indinij  he  »hnll 
hdi-f  Hotiii'  that  the  party  Is  a  factor  or  ai;ent :  l)Ul  In  such  ca.se  he  shall 
ac(|uire  sucli  Inlerest,  and  no  fnrtlier  or  other,  tis  was  possessed  by  the  factor 
or  a;:ent  at  tlie  time  of  the  deposit  or  pled;je;  and,  therefore,  in  this  last 
case,  If  tlie  ajjent's  interest  be  defeasible,  so  is  the  pled^fee's.  Itlitndij  v.  Allen, 
Dans.  i<:  Lloyd.  22;  Fhtrhi-r  v.  Iliitth,  7  B.  4  ('.  .'>17.  A  fraudulent  sale  can- 
not be  upheld  as  a  pled^^e  under  this  section.  I'hompHon  v.  Fannrr,  1  .M.  & 
M.  4M. 

The  |irovisioiis  of  tills  statute  ((5  (Jeo.  4,  c.  IM).  bciiiii  found  insulllcient  to 
niet't  tlie  wishes  or  convenience  of  men-iiants.  stat.  .'»  v<:  (!  Vict.  c.  31),  '•  An  act 
to  amend  tlie  law  relating  to  advances  bunii  Jidv  made  to  af^ents  Intrusted  with 
gootls."  was  passcil  (;i(itli  ,Iuiie,  1812). 

The  1st  section,  after  recitin;;  intir  alia,  that  by  (',  (Jco.  4,  c.  I>4,  "  validity  is 
{riven,  imder  certain  circumstances,  to  contracts  or  agreements  made  with 
persons  intrusted  w  ith  and  in  possession  of  the  documents  of  title  to  goods 
and  merclKiudize,  and  consisrnee  making  advances  to  persons  abroad  who  are 
intrusted  witli  any  jrootls  and  merchandize  are  entitled,  uniler  certain  circum- 
stances, to  a  lien  thereon,  but  under  tlie  said  act  and  the  present  state  of  the 
law.  advances  cannot  safely  be  made  upon  goods  or  <locunients  to  persons 
known  to  have  possession  thereof  as  agents  only ;  "  antl  that  "  advances  on 
the  security  of  gootis  and  merchantlize  li.nd  become  an  usual  and  ordinary 
course  of  business,  and  it  was  expedient  and  necessary  that  reas<mablc  and 
safe  facilities  should  be  aflbrded  thereto,  and  that  the  same  protection  and 
validity  should  be  extended  to  bond  fide  advances  upon  goods  and  merchan- 
dize as  by  the  6  Geo.  4,  c.  94,  is  given  to  sales,  and  that  owners  intrusting 
agents  with  the  possession  of  goods  and  merchandize,  or  of  documents  of 
title  thereto,  should  in  all  cases  where  such  owners  by  the  6  Geo.  4,  c.  t>4,  or 
otherwise,  would  be  bound  by  a  contract  or  agreement  of  sale,  be  in  like 
manner  bound  by  any  contract  or  agreement  of  pledge  or  lien  for  any 
advances  bond  fide  made  on  the  security  thereof;  "  and  tliat  "  much  litigation 
had  arisen  on  the  construction  of  the  (5  Geo.  4,  c.  94,  that  it  did  not  extend  to 
protect  exchanges  of  securities  bond  fide  made,  and  so  much  uncertainty 
existed  in  respect  thereof,  that  it  was  expedient  to  alter  and  amend  the  same, 
and  to  extend  the  provisions  thereof,  and  to  put  the  law  on  a  clear  and  certain 


LICKBAllROW   V.   IVIASON.  1105 

basis;  "  enacts  "  that  from  and  after  the  passing  of  this  act  any  agent  who 
shall  hereafter  be  intrusted  ivith  the  possession  of  goods  "  [Freeman  v.  Apple- 
yard,  32  L.  J.  Exch.  175],  "  or  of  the  docAiments  of  title  to  goods,  shall  be  deemed 
and  taken  to  be  owner  of  such  goods  and  documents,  so  far  as  to  give  validity 
to  any  contract  or  agreement  by  way  of  pledge,  lien,  or  security  bond  fide 
made  by  any  person  with  such  agent  so  intrusted  as  aforesaid,  as  well  as  for 
any  original  loan,  advance,  or  payment  made  upon  the  security  of  such  goods 
or  documents,  as  also  for  any  further  or  continuing  advance  in  respect  thereof, 
and  such  contract  or  agreement  shall  be  binding  upon  and  good  against  the 
owner  of  such  goods,  and  all  other  persons  interested  therein,  notwithstanding 
the  person  claiming  such  pledge  or  lien  may  have  had  notice  that  the  person  vjith 
whom  such  contract  or  agreement  is  made  is  only  cm  agent." 

This,  as  well  as  the  other  provisions  of  the  statute,  though  wide  enough  in 
terms  to  include  many  other  cases,  has  been  limited  in  construction  to  mer- 
cantile transactions.  So  that  in  Wood  v.  RoiccUffe,  6  Hare,  191,  where  it  was 
contended  that  advances  made  upon  the  security  of  furniture  in  a  furnished 
house,  not  in  the  way  of  trade,  to  the  apparent  owner  of  the  furniture,  who 
in  fact  was  an  agent  intrusted  with  the  custody  of  it  by  the  true  owner,  were 
within  the  protection  of  5  &  6  Vict.  c.  39,  Sir  James  Wigram,  V.-C,  held  the 
contrary,  saying  in  the  course  of  his  judgment:  "  the  first  act  (6  Geo.  4,  c. 
94),  is  for  the  '  protection  of  the  property  of  merchants  and  others,'  and  the 
property  referred  to  is  'goods,  wares,  and  merchandize,'  intrusted  to  the 
agent  '  for  the  purpose  of  consignment  or  sale,'  or  '  shipped ' ;  "  [see  the  first 
section  of  the  act;]  "  and  upon  a  judicial  construction  of  the  act  it  has  been 
held  that  the  generality  of  the  expressions  must  be  restricted.  Every  servant 
of  the  owner  of  goods  employed  in  the  care  or  carriage  of  such  goods,  is  in 
one  sense  '  an  agent  intrusted  with  goods,'  but  still  he  is  not  an  agent  within 
the  meaning  of  the  statute;  MonJc  v.  Whiltenbury,  2  B.  &  Ad.  484.  The  title 
of  the  second  act  (5  &  6  Vict.  c.  39)  is  more  general ;  but  it  appears  to  me  to 
relate  to  'agents,'  and  to  '  goods  and  merchandize,'  in  a  sense  Avhich  is  not 
applicable  to  the  agency  or  the  property  in  this  case." 

In  Monk  v.  Whittenhury,  supra,  it  was  considered  that  a  carrier,  warehouse- 
man, packer,  or  wharfinger  is  not  "  an  agent,"  within  6  Geo.  4,  c.  94;  and  Sir 
James  Wigram,  V.-C.,  appears  to  have  treated  that  decision  as  applicable  also 
to  the  construction  of  5  &  G  Vict.  c.  39. 

[In  Lamb  v.  Attenborough,  1  B.  &  S.  831 ;  31  L.  J.  Q.  B.  41,  a  wine-merchant's 
clerk  was  held  not  to  be  his  "  agent"  within  the  meaning  of  the  Factors  Acts, 
but  only  his  servant;  but  in  Hayman  v.  Flewker,  13  C.  B.  N.  S.  519;  32  L.  J. 
C.  P.  132,  a  person  intrusted  with  pictures  for  sale  on  commission,  and  whose 
ordinary  business  did  not  extend  to  selling  on  commission,  was  held  to  be  an 
"agent"  within  5  &  6  Vict.  c.  39,  s.  1,  as  his  employment  on  the  occasion 
corresponded  with  that  of  a  factor.  In  the  two  cases  of  Johnson  v.  Credit 
Lyonnais  Co.  and  Johnson  v.  Blumenthal,  3  C.  P.  D.  32,  47  L.  J.  C.  P.  241,  the 
Court  of  Appeal  affirmed  two  judgments  of  Denman,  J.,  and  Pield,  J.,  in 
which  those  learned  judges  respectively  held  that  a  vendor  who  had  been  left 
by  his  vendee  in  possession  of  documents  of  title  to  goods  till  it  suited  the 
convenience  of  the  buyer  to  accept  delivery,  could  not  under  the  Factors 
Acts  confer  a  good  title  upon  a  bona  fide  pledgee.  These  judgments,  though 
clearly  in  accordance  with  previous  decisions,  created  some  consternation 
amongst  commercial  men,  and  led  to  the  passing  of  another  Factors  Act,  40 
&  41  Vict.  c.  39,  whereby  it  is  provided  (sect.  3)  that  "  where  any  goods  have 
been  sold,  and  the  vendor  or  any  person  on  his  behalf  continues  or  is  in  pos- 


1100  LICKHAUUOW    V.   MASON. 

st'ssion  of  the  ilociiintiiis  .ii  liiU-  thereto,  any  sale,  pledge,  or  other  clispoHl- 
lloii  of  tlie  ^ooils  or  <loeumeiils  luacU'  by  siieh  veiulor  or  any  person  or  a«ent 
liitriistetl  l)y  the  vmilor  with  the  yooils  or  dociiineiitH  within  tlu-  meaning  of 
llic  priiuipal  acts  as  aiiuMuU'tl  l>y  tills  act.  so  eoiitlniiitiv;  or  helni;  In  posses- 
sion, shall  In-  as  valid  anil  ctfertual  as  if  smh  vendor  or  person  were  an  a);ent 
or  person  Intrusted  hy  the  vendee  with  the  j;oods  or  doeiiments  within  the 
meaning  of  the  prlnelpal  aets  as  amended  by  this  a<t,  provided  the  jierson  to 
whom  the  sale.  ple<lije.  or  other  disposition  Is  made  has  nt>t  n<»th-e  that  the 
jjoods  have  been  previously  sold."] 

In  .hnkijnit  v.  Vulxtrnr,  M  Seott,  N.  H.  50'.;  7  M.  &  C.  f>78.  S.  C,  eonllnne<l 
by  Vnn  L'antcel  v.  linnkt-r,  2  Kxeh.  •IDl.  a  ventlee  wh»>  hail  rerelveil  from  the 
vendor  a  delivery  order  for  the  ijootls  was  considered  not  to  be  a  person  In- 
trusted with  a  ilellvery  order  within  the  <!  (Jeo.  4,  e.  \\\,  s.  2.  s(»  as  to  W  eapa- 
bh-  of  makinj;  a  valid  pledge  of  the  delivery  onler.  and  so  defeat liiu'  the  rluht 
of  stoppage  in  trnnsitn.  [  Hnt  the  law  In  this  respect  also  has  been  alteretl  by 
the  last  Factors  Act.  40  v"i  41  Viet.  c.  ;$y.  which  provides  (sect.  4)  ••  that  where 
any  K<'o<ls  liave  been  sohl  or  contracted  to  be  stdd,  ami  the  vemlee.  or  any 
person  on  his  behalf,  obtains  the  possessh>n  of  tlie  documents  of  title  thereto 
from  the  vendor  or  Ids  agents,  any  sale,  pledge,  or  disposition  of  such  jjoods 
or  documents  by  such  veude*-  so  in  possession,  or  by  any  other  |)erson  or 
aiiciil  intnisteil  by  the  vendee  with  the  «locum«'nts  within  the  meanin*;  of  the 
primipal  acts  as  anu-nded  by  this  net.  shall  be  as  valiil  ami  etl'e<tnal  as  If  such 
vcudt-e  or  other  person  were  an  a^ent  or  person  lntrust«Ml  by  the  vendor  with 
the  documents  within  the  meauiui;  of  the  principal  acts  as  ,nmende<l  by  this 
act.  provided  the  person  to  whom  the  sali-,  ple<li;e.  or  other  <lisposltlon  Is 
made  has  not  notice  of  any  lien  or  other  ri<iht  of  the  vend(»r  in  respect  of  the 
jjoods."  In  Jomph  v.  W'lhh,  t'ab.  &  El.  2«;2.  It  was  heUI  by  lluddleston.  B.. 
that  a  mortj;aj;or  In  possession,  with  power  to  sell  o\\  his  own  account,  did 
not  come  within  the  Factors  Acts. 

Questions  of  nicety  have  arisen  as  to  liow  far  It  Is  necessary  that  the  a^ent 
at  the  time  when  he  pled>;es  the  icoods  slioidil  be  Intnisted  with  the  ^iiods 
for  the  purpose  of  sale. 

In  liainra  v.  Sinunaon,  4  B.  &  S.  L»7o,  the  transaction  was  held  protecteil, 
thouurh  the  instructions  kIvcii  to  the  aircut  were  ••  U'e  send  you  (the  factor) 
the  Hoods  for  tlie  puriMise  <»f  elVectini;  this  sale,  which  we  shall  ratify  and 
approve  through  you,  and  we  Intrust  you  with  the  possession  of  the  jjoods 
to  sec  if  they  answer  the  description  we  have  ^Iven."  The  aj^ent  in  that  case 
was  by  trade  a  factor. 

In  Fitcntes  v.  Montis,  L.  R.  3  C.  P.  2(18 ;  37  L.  J.  C.  V.  137.  the  subject  is 
elaborately  discussed  in  the  judiiment  of  Willcs.  J.  It  was  there  held  that 
the  auent  must  be  intrusted  for  the  purpose  of  or  in  connection  with  the 
sale,  and,  therefore,  tlKit  where  the  power  of  .sale  had  »)een  revoked  at  the 
time  of  the  pledge,  the  transaction  was  not  protected.  This  decision  was 
upheld  in  the  Exchequer  Chamber,  L.  R.  4  C.  P.  93;  38  L.  J.  C.  P.  05.  (It 
should  be  observed,  however,  as  regards  revocation,  that  by  40  &  41  Vict.  c. 
39,  s.  2,  it  is  provided  that  "  where  any  agent  or  person  has  been  intrusted 
with  and  continues  in  the  possession  of  any  goods  or  documents  of  title  to 
goods  within  the  meaning  of  the  principal  acts  as  amended  by  that  act,  any 
revocation  of  his  intrustment  or  agency  shall  not  prejudice  or  att'ect  the  title 
or  rights  of  any  otlier  person  who  without  notice  of  such  revocation  pur- 
chases sucli  goods,  or  makes  advances  upon  the  title  or  security  of  such 
goods  or  documents.") 


LICKB ARROW   V.    MASON.  1107 

Notwithstandiug  a  dictum  of  Lord  Westbury  in  Vickers  v.  Hertz,  L.  R.  2 
Sc.  App.  113,  the  decision  in  Fuentes  v.  Montis  was  followed  by  the  Court  of 
C.  P.  in  Cole  v.  The  N.  W.  Bank,  L.  R.  9  C.  P.  470,  where  it  was  vainly  con- 
tended that  the  omission  of  the  words  "  intrusted  for  sale"  and  "  consign- 
ment for  sale"  in  5  &  G  Vict.  c.  39,  ss.  1,  4,  altered  the  law  upon  this  point,  as 
it  existed  under  tlie  previous  statutes.  That  case  was  aflirraed  on  appeal  to 
the  Exchequer  Chamber,  L.  R.  10  C.  P.  354,  44  L.  J.  C.  P.  233,  and  has  since 
been  followed  in  the  important  case  of  Johnson  v.  Credit  Lyonnais  Co.,  2  C. 
P.  D.  224;  3  C.  P.  D.  32;  47  L.  J.  C.  P.  241,  and  also  in  HeUings  v.  Russell, 
33  L.  T.  N.  S.  380,  where  Lord  Justice  Brett  says,  "  Tlie  question  is,  Did  the 
agent  carry  on  a  commercial  agency  business  of  the  nature  of  a  factor  ?  " 
The  decision  in  Cole  v.  North  Western  Bank  comes  to  this  :  that  an  agent  who 
can  pledge  or  sell  must  be  an  agent  of  that  class  which,  like  factors,  have  a 
business  which,  Avhen  carried  to  its  legitimate  result,  would  properly  end  in 
selling  or  in  receiving  payment  for  goods.  Per  Lord  Blackburn,  Citt/  Bunk 
v.  Barrow,  5  App.  Ca.,  at  p.  678. 

For  tlie  purposes  of  tlie  acts  the  fact  of  the  goods  having  been  obtained 
from  the  principal  by  fraud  is  immaterial.  Sheppard  v.  The  Union  Bank  of 
London,  7  H.  &  N.  OGI ;  31  L.  J.  Ex.  154.] 

The  2nd  section  [of  5  &  6  Vict.  c.  39]  authorises  the  substitution  of  other 
goods,  documents  of  title,  or  negotiable  securities  for  those  first  deposited 
in  consideration  of  a  previous  advance;  but  provides  that  the  lien  acquired 
upon  the  substituted  property  shall  not  exceed  the  then  value  of  the  property 
given  up.  The  decision  which  pointed  out  the  necessity  for  that  section  was 
Bonzi  V.  Stewart,  4  M.  &  G.  525,  5  Scott,  N.  R.  1,  S.  C.  [See  upon  the  con- 
struction of  it,  Sheppard  v.  Union  Bank  of  London,  7  H.  &  N.  661.] 

Sect.  3  provides  and  enacts  that  the  act  shall  be  deemed  and  construed  to 
give  validity  to  such  contracts  and  agreements  only,  and  to  protect  only  such 
loans,  advances,  and  exchanges,  as  shall  be  made  bontt  fide,  and  loithout  notice 
that  the  agent  making  such  contracts  or  agreements  is  acting  ivithout  au- 
thority or  mala  fi.de  against  the  owner;  that  "it  shall  not  be  construed  to 
extend  to  or  protect  any  lien  or  pledge  for  an  antecedent  debt ;  "  [Jeioaw  v. 
Whitworth,  L.  R.  2  Eq.  692;  Macnee  v.  Gorst,  L.  R.  4  Eq.  315;  Kaltenbach  v. 
Lewis,  10  App.  Ca.  617;  a  sale  for  an  antecedent  debt  was  held  good,  Thackrah 
v.  Fergusson,  25  W.  R.  307]  —  "  nor  to  authorise  any  agent  in  deviating  from 
any  expressed  order  or  authority  received  from  the  owner  —  but  that,  for  the 
purpose  and  to  the  intent  of  protecting  all  such  bona  fide  loans,  advances, 
and  exchanges  as  aforesaid  (though  made  with  notice  of  such  agent  not 
being  the  owner,  but  without  any  notice  of  the  agent's  acting  without 
authority),  and  to  no  further  or  other  intent  or  purpose,  such  contract  or 
agreement  as  aforesaid  shall  be  binding  on  the  owner  and  all  other  persons 
interested  in  such  goods."  It  has  been  held  upon  the  construction  of  this 
section,  that  notice  that  the  factor  had  the  goods  for  sale  was  not  of  itself 
notice  that  he  had  no  authority  to  pledge.  Xavid.-^haw  v.  Brownrigg,  21  Law 
J.  Chauc.  57,  Vice-Chancellor.(Lord  Cranworth),  Ibid.  908,  [2  De  G.  Mac.  & 
G.  441,]  on  appeal.  Lord  Chancellor  (Lord  St.  Leonards).  [As  to  the  proper 
mode  of  putting  the  <iuestion  of  notice  to  a  jury,  see  Gobind  v.  Ghunder  Sein, 
app.,  Valentine  llyan,  resp.,  9  Moore,  Ind.  App.  140;  5  L.  T.  N.  S.  559,  S.  C] 

By  the  4th  section  "  any  bill  of  lading,  Lidia  warrant,  dock  warrant,  imre- 
house  keeper's  certificate,  warrant  or  order  for  the  delivery  of  goods,  or  any  other 
document  used  in  the  ordinary  course  of  business  as  proof  of  the  possession  or 
Control  of  goods,  or  authorising  or  purporting  to  authorise  either  by  indorsement 


11U8  Li('KiJAi:i:uw  v.  mason, 

or  hij  (IrlirHrij,  the  posHcssor  of  sinli  tlin'iiiiifiii  t.>  inmsfrr  or  receive  gotMlM 
thereby  ri-preseiittnl,  sliull  be  deemed  mid  taken  to  \h'  i\ili>rninfiit  uj  titlr  witlilu 
the  iiieiiniiii;  of  tlds  act:  —  and  any  a^ent  intrusted  as  aforesaid,  and  pfjs- 
Hessed  of  any  such  doeiinient  of  title,  whether  ilerived  Intinediately  from  thu 
Dwner  <d'  siieh  (foods,  or  obtained  by  reason  of  sii<-h  ai;ent'.s  lia\  ln:{  Ix'en 
Intrusted  with  the  |>ossrssion  of  the  <:oods,  or  of  any  other  doeunient  of  title 
thereto,  shall  be  deemed  and  taken  to  have  been  intnistftl  with  tlie  poHHenslon 
of  the  iroods  represented  by  sm-h  ilocument  of  title  as  aforesaid:" — (This 
legislative  Interpretation  of  the  word  "Intrusted"  was  pMideretl  neres.sary 
by  the  decisions  in  I'/iillipit  v.  Hitth,  >',  M.  &  \V.  ilo.'..  anil  If'tfjhlil  v.  I'hillipa,  0 
M.  &  \V  (U:,  alllrmed  In  the  11.  of  Lonls.  H  M.  &.  \V.  r,47,  1'2  CI.  &  Fin.  :{4:J. 
S.  (".,  tiiat  a  factor  intrusted  with  a  bill  of  ladini;,  and  who,  l»y  reason  of 
havinu  the  bill  of  lading,  was  enabled  to  and  did  (but  not  In  pursuance  of 
the  Instructions  of  his  principal)  possess  himself  of  a  doik  warrant,  wa.s 
not  to  be  consiilered  a  person  Intrusted  with  the  tlock  warrant  within  the 
meanin<;  of  (!  (leo.  4,  e.  1)4  :  [.sec  the  distinction  between  Intrusting  with  and 
enablini;  to  nbtain  possession  of.  Illustrated  by  Crompton,  .1.,  In  Hnimst  v. 
Sii'iiinsDii.  I  H.  .t  S.  '271).  and  Jithiimtn  v.  Creilit  Liftiniuiin,  l\  V.  1*.  1).  ;J2,  47  F*. 
J.  (\  I'.  LMI.  pi-r  Hramwell,  L.  .1.])  —  Ami  "all  «-ontnict.s  jthihiinij  ur  ijicimj  a 
lini  iipiiii  sitrh  ii,ntiii'ii'  <>/  litlf  an  aforesaid  shall  Iw  deemed  and  taken  to  l>e 
respectively  jtlnhjiH  nf  unit  lifits  itjinn  thr  ijixuls  to  which  the  same  relates  :  "  — 
"  And  sui'h  ai;etit  shall  be  deemed  to  be  posse>».seil  of  such  ;;oods  or  dfK'U- 
nicnts,  whether  the  same  shall  lu-  In  his  uriuiil  ruMi»lij,  or  shall  be  held  by  any 
ollu-r  person  subject  to  his  control  or  for  him  or  on  his  Iwhalf:"  —  And 
"  where  any  loan  or  advance  shall  be  luniil  fl*lr  ina<le  to  any  a;;ent  intnisted 
with  and  in4iossesslon  of  any  such  ijoods  or  ilocuiiii'nts  of  title  as  aforesaid, 
on  the  faith  of  nny  rtni/nirt  id-  itijri'fnunt  in  tcn'timj  to  consljjn,  de|>oslt,  trans- 
fer, or  deliver  such  -foods  or  do»"uments  of  title  as  aforesaid,  and  such  -foods 
or  tlt)cuinents  of  title  shall  nrtnnlhj  hi-  rn-'-iriil  by  the  person  makliiif  such  loan 
or  advance,  iritlimit  iintir>-  that  such  a-.;ent  was  not  autlioriscd  to  make  such 
pledife  or  security,  every  such  loan  or  ailvance  shall  be  dceinetl  and  taken  to 
be  a  loan  or  advance  on  the  security  of  such  {foods  or  documents  of  title 
within  the  meaninif  of  this  act,  thnuijh  »wh  ijnnilst  or  ihn-nuifnts  n/  title  shall 
not  actuitlhj  he  rrreiml  l>if  the  person  mnkinf/  surh  loan  or  ailrnnre  till  the  period 
snhseqiirnt  thereto  :  "  —  (This  enactment  may  have  sprunsf  from  the  inclination 
of  opinion  expressed  upon  the  second  point  arifue*!  but  not  decided,  in  lionzi 
V.  Steiciirt.  4  M.  &  (1.  21>."> ;  .'i  Sc<»tt,  N.  U.  1.  [See  also  Portnlis  v.  Tetleij,  L. 
R.  5  E(i.  140;  Cole  v.  .V.  H'.  Bunk,  snp.']-.)  —  And  "any  contract  or  aifree- 
ment,  whether  made  direct  with  such  ajfent  as  aforesaid,  or  iriih  any  rlerk  or 
other  person  on  his  hehnlf,  shall  be  deemeil  a  contract  or  ajfreement  irith  sitrh 
agent:"  —  And  ''am/  paijinent  made,  whether  A.v  monnj  or  hills  of  eyehange  or 
other  nejfotiable  security,  shall  be  deemed  and  taken  to  be  an  advance  within 
the  meaning  of  this  act:"  —  "  negotiahle  securit>j"  that  is,  for  the  payment  of 
money,  scmhle,  Taylor  v.  Kymer,  3  B.  &  Ad.  320;  and  althousfh  the  words  are 
any  payment,  yet  with  reference  to  the  object  of  this  act  they  must  be  con- 
strued to  mean  any  payment  by  way  of  loan  or  advance,  and  not  to  include  a 
case  where  the  real  object  of  the  parties  is  not  a  loan  or  advance,  such  as  was 
Loaroyd  v.  liuhinson,  12  M.  &  W.  745,  where  the  factor,  being  liable  with  the 
defendant  on  a  bill  of  exchange,  obtained  a  sum  of  money  from  the  defendant 
to  take  up  the  bill,  at  the  same  time  depositing  with  him  the  plaintiff's  goods. 
In  that  case  the  direction  of  the  judge,  CoUman,  J.,  to  the  jury  to  find  for 
the  plaintiff  if  they  considered  what  was  done  to  l)e  "  only  a  circuitous  mode 


LICKBARKOW    V.    MASOX.  1109 

of  paying  the  bill  on  which  the  defendant  was  liable,"  was  upheld  by  the 
Court  of  Exchequer.  —  Aud  "an  agent  in  2}ossession  as  aforesaid  of  such 
goods  or  documents  shall  be  taken,  for  the  purposes  of  this  act,  to  have  been 
intrusted  therewith  by  the  owner  thereof,  unless  the  contrary  can  be  shoion  in 
evidence. 

The  5th  section  provides  that  nothing  in  the  act  contained  shall  lessen, 
vary,  alter,  or  aftect  the  civil  responsibility  of  an  agent  for  any  l^reach  of 
duty  or  contract  or  non-fulfllment  of  his  orders  or  authority. 

[The  6tli  section  has  been  repealed  by  24  &  25  Vict.  c.  95,  but,  with  some 
alteration,  re-enacted  by  an  act  consolidating  and  amending  the  statutes 
relating  to  larceny  and  like  offences,  viz.,  24  &  25  Vict.  c.  96,  by  the  78th 
section  of  which  a  factor  or]  agent  exercising  the  powers  virtually  con- 
ferred upon  him  by  [5  &  6  Vict.  c.  39]  mala  fide,  and  without  the  authority 
of  his  principal,  [is]  subject  to  punishment  by  [penal  servitude  or  impris- 
onment], as  for  a  misdemeanor,  unless  where  the  property  dealt  with  is  not 
made  a  security  for  or  subject  to  the  payment  of  any  greater  sum  of  money 
than  the  amount  which  at  the  time  was  justly  due  and  owing  to  such  agent 
from  his  principal,  together  with  the  amount  of  any  bills  of  exchange 
drawn  by  or  on  account  of  such  principal,  and  accepted  by  such  agent:  or 
[by  s.  85  of  the  24  &  25  Vict.  c.  96]  unless  he  shall,  previously  to  his  being 
[charged  with  the  offence],  have  disclosed  it,  [/?.  v.  Skeen,  1  Bell,  C.  C.  R.  97; 
28  L.  J.  M.  C.  91]  on  oath,  in  consequence  of  compulsory  process  in  any  pro- 
ceeding bona  fide  instituted  by  any  party  aggrieved,  or  in  an  examination  or 
deposition  before  any  court  of  bankruptcy  or  insolvency. 

Sect.  7  [of  the  5  &  6  Vict.  c.  39]  preserves  the  right  of  the  owner  to  re- 
deem, and  enables  him  to  prove  under  the  bankruptcy  of  the  agent  for  the 
amount  paid  to  redeem,  or  the  value  of,  the  goods.  [See  on  this  section, 
Kaltenhach  v.  Leicis,  10  App.  Ca.  617,  55  L.  J.  Ch.  58.] 

The  8th  section  is  the  common  interpretation  clause,  and  the  9th  and  last 
excludes  a  retrospective  application  of  the  provisions  of  the  act. 

This  act,  5  &  6  Vict.  c.  39,  it  may  be  observed,  relates  to  advances  upon  the 
security  of  goods,  and  it  will  still  be  necessary  to  resort  to  the  2nd  and  4th 
sections  of  6  Geo.  4,  c.  94,  in  cases  not  falling  within  that  category. 


Stoppage  in  transitu.  —  The  right  of  stoppage  in  transitu^  says 
Chief-Justice  Shaw  in  Rowley  v.  Bigelow,  12  Pick.  313,  is  noth- 
ing more  than  an  extension  of  the  right  of  lien,  which  by  the 
common  law  the  vendor  has  upon  the  goods  for  the  price,  origi- 
nally allowed  in  equity  and  subsequently  adopted  as  a  rule  of 
law.  See,  also,  Stubbs  v.  Lund,  7  Mass.  453,  9  Mass.  65 ;  Scho- 
field  V.  Bell,  14  Mass.  40  ;  Stanton  v.  Eager,  16  Pick.  467 ;  Bab- 
cock  V.  Bonnell,  80  N.  Y.  244 ;  Newhall  v.  Vargas,  15  Me.  314 ; 
Ludlow  V.  Bowe,  1  Johns.  16,  5  Denio  629.  When,  by  the  terms 
of  the  sale,  the  price  is  to  be  paid  on  delivery,  the  vendor  has  a 
right  to  retain  the  goods  till  payment  is  made.     But  when  the 


1110  I,irKl5Ai:it<)W    V.    MASON. 

vi'iulor  iuid  vendee  are  at  a  distance  from  each  other,  and 
if,  while  the  j^'ckxIs  are  on  the  way  from  the  vendor  U*  the 
vendee,  the  latter  heeomes  insolvent  and  the  vendor  ciin  re- 
possess himself  of  thr  goods  ht-fore  they  reach  the  vendee,  hi- 
h;is  ii  rij^dit  to  do  so,  and  tlierehy  regain  his  lien  ;  Rowley  v. 
liigelow,  u/ii  xN/ini. 

Tiie  general  doctiiiii!  of  the  dei-isions  on  this  hraiuh  of  the 
law  is,  that  the  right  dejiends  solely  npiin  the  innoltunci/  of  the 
vendor.  Bnt  the  term  insolvency  in  this  connection  denotes 
more  than  merely  having  taken  tin*  henctit  of  an  insolvent  or 
hankrnpt  l;iw ;  it  also  inchides  a  failnrr  to  j>ay  his  <Kd)ts  as 
they  become  dne,  or  his  inability  to  jmy  for  the  goods,  if  he 
was  to  pay  on  delivery;  Rogers  c.  Tlutinas,  20  Conn.  .'A,  1"J'^ 
Mass.  12;  Thompson  r.  Thompson,  4  Cash.  127;  Lee  v.  Kil- 
Imrn,  nCuay  oi^ ;  IK-rrick  c.  Horst,  4  Hill  GoO ;  Chandler  r. 
Fulton,  10  Texas  2;  Atkins  r.  Colby,  20  N.  II.  lo4  ;  Nayler  v. 
Dennie,  8  Pick.  11>8;  Hays  r.  Movoille,  14  Penn.  ol  ;  Secomlje 
V.  Mill,  14  B.  Monroe  324. 

In  Rogers  v.  Thomas,  uln  xupra,  it  was  luld  that  it  was  essen- 
tial to  the  right  of  xtoppajie  in  tntm^itn,  that  the  insolvency 
should  intervene  between  the  time  of  sale  and  the  exercise  of 
the  right  of  stoppage.  But  this  is  not  the  prevailing  doctrine 
of  the  American  cases;  Benedict  v.  Schaettlc,  12  Ohio  olo; 
1  Disney  445;  O'Brien  v.  Norris,  !•;  Md.  1  i^J :  l.o,-b  r.  Peters, 
G3  Ala.  243;  Blum  v.  Marks,  21  La.  Ann.  2t;s ;  K,.ynolds  v.  B. 
&  M.  R.  Co.,  43  N.  II.  580.  If  the  vendee  was  insolvent  at  the 
date  of  the  sale,  but  the  vendor  did  not  discover  it  till  after- 
wards, his  right  of  8toppa;/e  remains;  Benedict  v.  Schaettlc,  12 
Ohio  515:  Gustine  v.  Phillips,  38  Mich.  GT5  &  390 ;  Blum  v. 
Marks,  21  La.  Ann.  268 ;  Schwabacker  v.  Kane,  13  Mo.  App. 
126;  Bender  I'.  Bowman,  2  Pearson  (Pa.)  517;  More  v.  Lott, 
13  Nev.  380 ;  White  v.  Welsh,  38  Pa.  St.  306.  It  is  not  nec- 
essary to  show  that  the  price  for  the  goods  is  due  and  pay- 
able ;  Clapp  V.  Sohmer,  55  Iowa  273. 

The  right  of  stoppage  hi  transitu  does  not  exist  where  the 
goods  are  consigned  to  a  creditor  of  the  consignor  in  payment 
of  the  debt  of  the  consignor ;  Clark  i\  Mauran,  3  Paige  (N.  Y.) 
373 ;  Wood  v.  Roach,  1  Yeates  (Pa.)  177.  Nor  does  the  right 
exist  against  a  bond  fide  indorsee  of  a  bill  of  lading  for  value ; 
Dows  V.  Perrin,  16  N.  Y.  825.  See  Summeril  v.  Elder,  1  Binn» 
106 ;  Eaton  v.  Cook,  32  Vt.  58. 


LICKBAEllOW    V.    MASON.  1111 

Continuance  of  the  right.  —  The  right  continues  so  long  as 
the  goods  are  in  the  possession  of  the  carrier  as  such,  and  so 
long  as  they  remain  in  any  place  of  deposit  connected  with 
their  transmission ;  2  Kent  Com.  544-5 ;  Buckley  v.  Stick- 
ney,  15  Wend.  137,  23  Wend.  611 ;  White  v.  Mitchell,  38  Mich. 
390.  It  was  held  in  Sawj^er  v.  Joslin,  20  Vt.  172,  that  the  right 
ceases  whenever  the  goods,  in  pursuance  of  the  original  desti- 
nation given  them  by  the  consignor,  have  come  into  either  the 
actual  or  constructive  j)OSsession  of  the  consignee ;  Becker  v. 
Hallgarten,  86  N.  Y.  167.  A  delivery  of  the  goods  to  forward- 
ing agents,  employed  by  the  vendee  to  remain  with  them  until 
the  vendee  should  send  orders  respecting  their  destination,  was, 
in  legal  effect,  a  delivery  to  the  vendee,  the  transitus  complete, 
and  the  right  to  stop  the  goods  was  terminated.  But  if  the 
goods,  at  the  time  they  were  delivered  to  the  forwarding  agents, 
were  destined  to  a  foreign  port,  under  an  assignment  already 
made,  and  the  goods  were  to  be  forwarded  to  their  destination 
without  any  further  orders  from  the  vendee,  the  trmmtus  was 
not  ended  when  the  goods  came  into  the  possession  of  the  for- 
warding agents,  but  continued  until  the  goods  reached  their 
final  destination ;  Biggs  v.  Barry,  2  Curtis  262 ;  Cobeen  v. 
Campbell,  30  Penn.  254. 

Goods  were  sold  by  marks  and  numbers,  lying  in  the  vendor's 
warehouse  on  six  months'  credit ;  and  it  was  a  part  of  the  con- 
sideration of  the  purchase  that  they  might  lie,  rent  free,  in  the 
warehouse,  at  the  option  of  the  vendee  and  for  his  benefit,  till 
the  vendor  should  want  the  room.  Seld^  the  delivery  was  com- 
plete, and  the  right  of  stoppage  at  an  end ;  Barrett  v.  Goddard, 
3  Mason  107.     See  also  Bradford  v.  Morbuy,  12  Ala.  520. 

The  right  of  stopping  goods  shipped  on  the  credit  and  at  the 
risk  of  the  consignee  continues  until  they  come  into  his  actual 
possession  at  the  end  of  the  voyage,  unless  he  shall  have  sold 
them  previously  hond  fide,  and  indorsed  the  bills  of  lading  to 
the  purchaser ;  Stubbs  v.  Lund,  uhi  supra ;  Ilsley  v.  Stubbs, 
9  Mass.  71-4,  16  Pick.  467;  Arnold  v.  Delano,  4  Cush.  33,  8 
Cranch  418 ;  Grant  v.  Hill,  4  Gray  361  ;  Rowly  v.  Bigelow,  uhi 
supra.  See  Bolin  v.  Huffnagle,  1  Rawle  (Pa.)  9 ;  Castanola  v. 
Missouri  Pacific  R.  Co.,  24  Fed.  Rep.  267.  The  same  rule,  says 
Ch.  J.  Parsons,  in  Stubbs  v.  Lund,  must  govern,  if  the  con- 
signee be  the  shipowner  sed  qucere.  See  Abbott  on  Shipping, 
5  ed.  394,  and  Rand's  note  (^),  9  Mass.  pp.  71-2,  13  Me.  93. 


1112  i,I(K1;ai:i:<>\v   v.   mason. 

Goods  slii[)pe(l  oil  l)()iu<l  ;i  vcssrl  ;irt;  still  iii  tntimitn  iillfi  llio 
arrival  of  the  vt-ssel  at  tliu  port  of  (K'stiiiation,  until  tlu-y  aro 
taken  possession  of  by  (»r  on  l)(.'li;ilf  ot"  the  assij^nec  ;  Nayler  v. 
Dennie,  S  Pick.  V.^H. 

An  attiiehin«-iit  of  f^Mods  so  situated  as  the  piopi-rty  of  the 
-consignee,  will  not  dihat  the  consignor's  ri<^ht  to  stop  theiii; 
Ma.son  v.  Wilson,  43  Ark.  172;  Suymoiir  r.  Newton,  lOo  .Ma.ss. 
272;  C.  H.  &  Q.  U.  Co.  r.  Painter,  15  Neh.  394.  Hut  if  the 
vendor  attaches  the  ^'oods  while  in  transit,  as  the  property  of 
the  vendee,  his  ri^ht  of  stop[)age  in  trnnnitu  ceases;  Woodruff 
V.  Noyes,  15  Conn.  335;  Hiller  v.  KUiott,  45  X.  .1.  L.  5»;4,  »30 
Tex.  373;  Inslee  r.  Lane,  57  N.  II.  454;  Mississippi  Mills  /•. 
Union  iV  Planters'  liank,  1»  Lee  (Tenn.)  735;  Slierinan  v. 
Rugee,  55  Wis.  34t5. 

The  vendee,  actinj^  in  <,'ood  faith,  may  intercept  the  ^oods 
bef(>re  they  reach  their  destination,  and,  hy  taking  actual  pos- 
session of  them,  defeat  the  vendor's  lien;  Mi»hr  i\  B.  ♦S:  .\.  U. 
Co.,  10()  Mass.  72.  Rut  the  intereejition  must  he  in  g««)d  faith; 
Poole  V.  Houston,  tVc.,  R.  Co.,  58  Tex.  134.  See  Brooke  Iron 
Co.  r.  <)'P>ritii,  135  Mass.  447.  If  the  vendee  intercept  the 
goods  on  their  passage  to  him,  and  take  possession  as  owner, 
the  fnoisifiis  is  at  an  end;  2  Kent  Com.  547;  Jordan  /•.  .lames, 
5  II.  (Ohio)  8S;  Wood  r.  Yeatmaii,  15  P..  M..ii.  27<i.  p.ut  a 
(U'lnaiid  for  the  goods  ina<le  hy  the  vt-ndee  upon  the  carrier, 
with  which  he  does  not  com[)ly,  does  not  terminate  the  vendor's 
right  of  stoppage  ;  Jackson  r.  Nichol,  5  Bing.  (N.  C.)  508. 

A  common  carrier,  who  surrendi'rs  the  possession  of  goods, 
entrusted  to  him  for  carriage,  to  an  ollicer  who  attaches  upon  a 
legal  process  against  the  consignee,  is  not  liable  to  the  consignor, 
after  notice  to  liim  to  hold  the  goods,  for  not  notifying  the  offi- 
cer or  taking  steps  to  stop  the  gootls  m  trauHitu  ;  French  v. 
Star  Union  Trans.  Co.,  134  Mass.  285.  But  the  carrier  is  liable 
if  he  delivers  the  goods  to  an  officer  who  attiiches  them  on  a 
Avrit  against  a  person  not  the  owner ;  Edwards  v.  White  Line 
Transit  Co.,  104  Mass.  159.  The  stopping  of  goods  in  transitu 
does  not  rescind  the  contract  of  sale ;  Grant  v.  Mill,  4  Gray 
361 ;  Newhall  v.  Vargas,  ubi  supra  ;  Rowly  v.  Bigelow,  ubi  supra, 
16  Pick.  475 ;  Chandler  v.  Fuller,  10  Texas  2 ;  Rogers  v. 
Thomas,  20  Conn.  53 ;  Babcock  v.  Bonnell,  80  N.  Y.  244 ;  Pot- 
ter's App.,  45  Penn.  151. 

The  vendor  does  not  take  possession  of  the  goods  as  his  own, 


LTCKBARROW   V.    MASO]?f.  1113 

but  as  those  of  the  vendee  and  upon  due  notice  and  time  he 
may  resell  the  goods  and  apjjly  the  proceeds  of  the  sale  in  part 
payment  and  sue  the  vendee  for  the  balance;  2  Kent  Com. 
541,  15  Me.  314 ;  Howatt  v.  Davis,  5  Munf .  (Va.)  34  ;  House 
V.  Judson,  4  Dana  (Ky.)  10. 

If  the  consignee  dies,  his  personal  representative,  may,  on  the 
arrival  of  the  goods,  take  possession  and  so  terminate  the  tran- 
sit; Conyers  v.  Ennis,  2  Mason  236. 

The  consignor's  right  of  stoppage  in  transitu  is  ]iot  defeated 
by  the  assignee's  accepting  bills  for  the  value  of  the  goods ;  Bell 
V.  Moss,  5  Wharton  (Pa.)  189 ;  Donath  v.  Broomhead,  7  Barr. 
310;  Newhall  v.  Vargas,  ubi  supra,  see  9  Mass.  65.  Nor  is  the 
consignor's  right  defeated  by  the  payment  of  part  of  the  price, 
by  the  assignee.  See  Peters  v.  Ballister,  3  Pick.  495.  But 
where  goods  are  sold  boiid  fide  while  in  transit,  by  assignment 
of  tlie  bill  of  lading,  the  right  of  the  original  vendor  to  stop 
the  goods  in  transit  ceases;  Walter  v.  Ross,  2  Wash.  283  ;  Lee 
V.  Kimball,  45  Me.  172 ;  Haggerty  v.  Palmer,  6  Johns.  437 ; 
Boyd  V.  Mosely,  2  Swan  (Tenn.)  661.  See  Andenreid  v.  Ran- 
dall, 3  Cliff.  99.  But  an  assignment  by  the  vendee  to  pay  his 
debts  will  not  affect  the  right  of  stoppage  in  transitu ;  Harris 
V.  Hart,  6  Duer  (N.  Y.)  606. 

It  is  not  necessary  that  the  vendor  should  obtain  actual  pos- 
session of  the  goods,  but  is  sufficient  if  he  give  notice  of  his 
claim  to  the  person  in  whose  custody  they  are  during  the  tran- 
sit ;  Mottram  v.  Heyer,  5  Denio  629 ;  Bell  v.  Moss,  uhi  supra. 

In  Grant  v.  Hill,  4  Gray  367,  Ch.  J.  Shaw  says  :  "  What 
amounts  to  a  stoppage  in  transitu,  in  a  particular  case,  may  be 
a  question  of  difificulty.  But  if  the  vendee  finding  he  shall  not 
be  able  to  pay  for  the  goods,  gives  notice  thereof  to  the  vendor, 
and  leaves  the  goods  in  possession  of  any  person,  when  they 
arrive,  for  the  use  of  the  vendor,  and  the  vendor  on  such  notice 
assents  to  it,  that  is  a  good  stoppage  m  transitu. 

The  question  as  to  when  the  transit  begins  and  ends  is  con- 
sidered in  the  cases ;  Thompson  v.  B.  &  O.  R.  Co.,  28  Mo.  396  ; 
Mohr  V.  B.  &  A.  R.  Co.,  106  Mass.  67;  Brooke  Iron  Co.  v. 
O'Brien,  135  Mass.  442;  Hall  v.  Deamond,  63  N.  H.  565; 
Durgy  Cement  &  Umber  Co.  v.  O'Brien,  123  Mass.  14 ;  Harris 
V.  Pratt,  17  N.  Y.  249;  Muskegan  Booming  Co.  v.  Underbill, 
43  Mich.  629  ;  Bunn  v.  Valley  Lumber  Co.,  51  Wis.  376.  The 
right  of  stoppage  ceases  when  the  entry  of  goods  in  a  bonded 


1111  LU.'KilAKUoW     V.    MASmN. 

warehouse  is  peifiMtc'd  ;  (';irt\\  liglit  v.  Wilnie  r<lin^,  24  N.  V. 
521;  Fnv/AT  r.  llillianl,  2  Str.)l)h.  (S.  C.)  309.  See  Hoover  t-. 
Tihl)cts,  U  Wis.  Tl>;  Parker  r.  Mclver,  1  Desau.  (S.  C.)  274; 
(iilfonl  r.  Sinitli,  30  Vt.  48;  Bluckinaii  r.  Pierce,  23  Cal.  508; 
At^uirre  r.  Piii  iiielec,  22  Conn.  473.  Hut  if  llie  ^oods  U*  in  u 
publir  store,  awaitiui,'  the  comj>letiou  i»f  the  entry,  the  con- 
signor's ri<;ht  to  stop  tluMu  in  transit  ct)ntinues;  Westrrn  Trans. 
Co.  V.  Ilawley,  1  Daly  (N.  V.)  327.  See  Clapp  v.  Peck,  55  Iowa 
270.  If  the  transit  is  once  at  an  end,  it  cannot  commence 
again,  l)ecauso  the  gooiLs  are  sent  to  a  new  destinatiiui ;  Pattin- 
ger  V.  Ileckslier,  2  Cirant  (Pa.)  309. 

Where  tlie  consignee  agreed  with  the  carrier  to  set  the  goods 
aside  in  its  depot  to  Ixj  sold,  to  pay  })ast  <lue  freights  and  pay 
the  h;dance  to  the  assignee,  it  was  held  this  was  not  su(;h  a 
delivery  to  the  assignee  jvs  to  «lefi'at  the  Ci)nsignor's  rigiit  of 
stop[)age  in  frannitu  ;  Macon  vV  \\'r>trni  K.  !{.  r.  Meador,  65 
Ga.  705.  .Vfter  goods  have  l>een  sold  hy  the  vendee  in  good 
faith  and  hy  llu-  carrier  delivered  to  his  vendee,  tlie  original 
vendor's  right  of  stoppage  in  (rdHMitu  is  gone.  United  States 
Wind  Engine,  »S:c.,  Co.  v.  Oliver,  1»>  Xeb.  «il2. 

Goods  may  be  stopped  in  tranxitu  after  their  arrival  at  the 
carrier's  warehouse,  and  there  awaiting  payment  of  the  freight; 
Symns  v.  Schotten,  35  Kan.  310:  ll.uiliug  Paper  Co.  v.  Allen, 
65  Wis.  576. 

By,  and  against  whom,  and  how  the  right  may  be  exercised 
is  discussed  in  the  following  cases;  Newhall  v.  Vargas,  uhi 
supra:  Seymour  v.  Newton,  105  Mass.  275;  5  Daly  476;  Mul- 
len V.  Pander,  r^b  N.  Y.  325;  Hays  v.  Monille,  14  Penn.  48; 
Gustine  v.  Phillips,  38  Mich.  674 ; '  ReynokLs  v.  B.  &  M.  R.  Co., 
43  N.  II.  324;   Roche  v.  Donovan,  13  Kans.  251. 

A  creditor  of  an  insolvent  vendee  cannot,  by  paying  the 
freight  on  the  goods  and  attaching  them,  defeat  the  vendor's 
right  to  stop  them  in  transitu  ;  Greve  v.  Dunham,  60  Iowa  108. 
When  one  through  his  agent  sells  goods  to  another,  and  they 
are  shipped  to  the  purchaser,  the  agent  has  no  right  to  stop  the 
goods  in  transitu,  because  his  principal  owes  him  for  money 
advanced  in  the  purchase  of  the  gootls;  Gwyn  v.  Richmond  «& 
Danville  R.  Co.,  85  N.  C.  429. 


MASTER   V.    MILLER. 


TRINITY.  — 3    GEO.   3,   K.   B.   &    CAM.    SCACO. 
[reported  4  T.  R.  320  and  2  hen.  bl.  140.] 

An  unautJiorized  alteration  of  the  date  of  a  hill  of  exchange^ 
after  acceptance,  whereby  the  payment  would  he  accelerated, 
avoids  the  instrument ;  and  no  action  can  he  afterwards  hrought 
upon  it,  even  by  an  innocent  holder  for  a  valuable  considera- 
tion (a). 

[But  see  now  the  Bills  of  Exchange  Act,  1882,  s.  64,  post  in 
notis.'\ 

The  first  count  in  this  declaration  was  in  the  usual  form,  by 
the  indorsees  of  a  bill  of  exchange  against  the  acceptor;  it 
stated  that  Peel  and  Co.,  on  the  20th  of  March,  1788,  drew  a 
bill  for  974Z.  10s.  on  the  defendant,  payable  three  months  after 
■date  to  Wilkinson  and  Cooke,  who  indorsed  to  the  plaintiffs. 
The  second  count  stated  the  bill  to  have  been  drawn  on  the 
26th  of  March.  There  were  also  four  other  counts :  for  money 
paid,  laid  out,  and  expended ;  money  lent  and  advanced ;  money 
had  and  received ;  and  on  an  account  stated.  The  defendant 
j)leaded  the  general  issue ;  on  the  trial  of  which  a  special  ver- 
dict was  found. 

It  stated  that  Peel  and  Co.,  on  the  26th  March,  1788,  drew 
their  bill  on  the  defendant,  payable  three  months  after  date  to 
Wilkinson  and  Cooke,  for  974?.  10s.,  "which  said  bill  of  ex- 
change, made  by  the  said  Peel  and  Co.,  as  the  same  hath  been 
altered,  accepted,  and  written  upon,  as  hereinafter  mentioned, 
is  now  produced,  and  read  in  evidence  to  the  said  jurors,  and 
is    now    expressed    in    the    words    and    figures    following;    to 

(a)  See  Hntchins  v.  Scott,  2  M.  &  of  the  pei'son  producing  it  was  held 
W.  809,  where  an  agreement  whicli  admissible  in  evidence  for  some  pur- 
had  been  altered  while  in  the  custody      poses. 


1  1  If,  MASTKK     \  .    MILl.KK. 

wit,  '.Jiiuf  -JOrcl,  *.»T4/.  lOx.,  Mtnrh,»t,i\  Miiich  20,  17H8,  three 
months  after  date  [Kiy  to  the  order  of  Messi-s.  Wilkiiwoii  and 
Cooke,  1>T4/.  l().y.,  received,  as  advised,  Peel,  Vales,  and  Co. 
To  Mr.  Cha.  Miller,  C.  M.  23rd  June,  1T«S.'  That  IVel  and 
Co.  delivered  the  said  bill  U)  Wilkinson  and  Cooke,  whieh  the 
<lefendant  afterwards  and  Injfore  the  alteration  of  the  hill  here- 
inafter nientione<l  aeeepted,  that  Wilkinson  and  C<M»ke  after- 
wards indorsed  the  sjiid  hill  to  the  jdaintitTs  for  a  valnahle 
consideration  In-fon'  that  time  given,  and  paid  hy  them  to 
Wilkinson  and  Co(»ke  for  the  same.  That  the  said  hill  of  ex- 
chanrje,  at  the  time  of  making  thereof  and  at  the  time  of  the 
acceptance,  and  when  it  came  to  the  hands  of  Wilkinson  and 
Cooke,  as  aforesaid,  hore  date  on  the  20th  day  of  March,  17H8, 
the  day  of  making  the  same  ;  and  that  after  it  so  came  to  and 
whilst  it  remained  in  the  hands  of  Wilkinson  and  Co«)ki',  the 
said  date  of  the  said  hill,  witlioiit  the  authority  or  privity  of 
defendant,  was  altered  hy  some  person  or  persons  to  the  juroi-s 
aforesaid  unknown,  from  the  20th  day  of  .Maich,  1788,  to  the 
20th  day  of  Manh,  17ss.  That  the  wc.rds  -.luac  2:'.nl,'  at  the 
top  of  the  l)ill.  Were  there  inserted  to  mark  that  it  would  he- 
come  due  and  payable  on  the  23rd  of  June  next  after  the  date; 
and  that  the  alteration  iiricinlK'fore  mentioned,  and  the  hlot 
upon  the  date  of  the  hill  of  exchange,  now  produced  and  read 
in  evidence,  were  on  the  hill  of  exchange  when  it  was  carried 
to  and  came  into  the  hands  and  possession  of  the  plaintiffs. 
That  the  bill  of  exchange  was  on  the  23rd  of  June,  and  also 
on  the  28th  of  June,  1788,  presented  to  the  defendant  for 
payment;  on  each  of  which  days  respectively  he  refused  to 
pay."  The  verdict  also  stated  that  the  bill  so  produced  to 
the  jury  and  read  in  evidence  was  the  same  bill  upon  which 
tlie  [)lainliiYs  declared,  tVc. 

This  case  was  argued  in  Hilar}-  Term  last,  by  Wood  ior  the 
plaintiffs,  and  Mlngaii  for  the  defendant ;  and  again  on  this  day 
by  Chamhrc  for  the  plaintiffs,  and  Erxkine.  for  the  defendant. 

For  the  plaintiffs  it  was  contended  that  they  were  entitled, 
notwithstanding  the  alteration  in  the  bill  of  exchange,  to  re- 
cover, according  to  the  truth  of  the  case,  which  is  set  forth  in 
the  second  count  of  the  declaration,  namely,  upon  a  bill  dated 
the  26th  March ;  wliicli  the  special  verdict  finds  was  in  point  of 
fact  accepted  by  the  defendant.  More  especially  as  it  is  clear 
that  the  plaintiffs  are  holders  for  a  valuable  consideration,  and 


MASTER    V.    MILLER.  1117 

had  no  concern  whatever  in  the  fraud  that  was  meditated,  sup- 
posing any  such  appeared.  The  only  ground  of  objection  which 
can  be  suggested  is  upon  the  rule  of  law  relative  to  deeds,  by 
which  they  are  absolutely  avoided,  if  altered  even  by  a  stranger 
in  any  material  part,  and  upon  a  supposed  analogy  between 
those  instruments  and  bills  of  exchange  ;  but  upon  investigating 
the  grounds  on  which  the  rule  stands  as  applied  to  deeds,  it  will 
be  found  altogether  inapplicable  to  bills :  and  if  that  be  shown, 
the  objection  founded  on  the  supposed  analogy  between  them 
must  fall  with  it.  The  general  rule  respecting  deeds  is  laid 
down  in  Pir/ofs  Case  («),  where  most  of  the  authorities  are 
collected;  from  thence  it  appears,  that  if  a  deed  be  altered  in  a 
material  point,  even  by  a  stranger,  without  the  privity  of  the 
obligee,  it  is  therel^y  avoided ;  and  if  the  alteration  be  made  by 
the  obligee,  or  with  his  privity,  even  in  an  immaterial  part,  it 
will  also  avoid  the  deed.  Now  that  is  confined  merely  to  the 
case  of  deeds,  and  does  not  in  the  terms  or  principle  of  it  apply 
to  any  other  instruments  not  executed  with  the  same  solemnity. 
There  are  many  forms  requisite  to  the  validity  of  a  deed,  which 
were  originally  of  great  imj^ortance  to  mark  the  solemnity  and 
notoriety  of  the  transaction ;  and  on  that  account  the  grantees 
always  were,  and  still  are,  entitled  to  many  privileges  over  the 
holders  of  other  instruments.  It  was  therefore  reasonable 
enough  that  the  party  in  Avhose  possession  it  Avas  lodged,  should, 
on  account  of  its  superior  authenticity,  be  bound  to  preserve  it 
entire  with  the  strictest  attention,  and  at  the  peril  of  losing  the 
benefit  of  it  in  the  case  of  any  material  alteration  even  by  a 
stranger  ;  and  that  he  is  the  better  enabled  to  do  from  the 
nature  of  the  instrument  itself,  which,  not  being  of  a  negotiable 
nature,  is  not  likely  to  meet  with  any  mutilation,  unless  through 
the  fraud  or  negligence  of  the  owner ;  whereas  bills  of  exchange 
are  negotiable  instruments,  and  are  perpetually  liable  to  acci- 
dents in  the  course  of  changing  hands,  from  the  inadvertence  of 
those  by  whom  they  are  negotiated,  without  any  possibility  of 
their  being  discovered  by  innocent  indorsees,  who  are  ignorant 
of  the  form  in  which  they  were  originall}-  drawn  or  accepted; 
and  the  present  is  a  strong  instance  of  that ;  for  the  plaintiffs 
cannot  be  said  to  be  guilty  of  negligence  in  not  inquiring  how 
the  blot  came  on  the  bill,  which  mere  accident  might  have  oc- 
casioned.    That  the  same  reasons  upon  which  the  decisions  of 

(rt)   11  Co.  27. 


1118  MASTKIC    V.    MILLKU. 

thf  t(»ints  uiMm  (IcimIs  hiivt*  Ihjoii  grouiuled,  will  not  HU|>iK)rt 
such  jiitl^mt'iits  upon  l)ill.s,  will  U'st  iip|M?ar  by  refurrinj^  to  ihu 
authoritiL's  tlit'instlvL's.  When  a  deed  is  jjleadeil,  there  mu.si  lie 
a  prot'ert  in  curiam  («<),  unless,  a.s  in  It*'<i>l  v.  lirookmnn  {^f>)^  it 
be  lost  or  destroyed  by  accident,  which  must  liowever  l>e  stated 
in  the  [)leadin;^'s.  Tlu!  reast>n  of  which  is,  that  anciently  the 
deed  was  actually  brouj^ht  into  court  f«)r  the  purpose  of  ins{H;c- 
tion  ;  and  if,  as  is  said  in  10  Co.  02,  b,  the  judges  f«»und  that  it 
liad  l)een  rust-d  or  interlined  in  any  material  part,  they  adjudged 
it  to  1h!  void.  Now,  as  that  wjis  the  reason  why  a  deed  Wiw 
rcipiired  to  Ik;  [)leaded  with  a  /'/^>/Vr^  aiul  as  it  never  was  neccs- 
sarv  to  njak«'  a  pro/erf  of  a  bill  of  exchange  in  plea<ling,  it  fur- 
nishes a  strong  argument  that  the  reason  applied  solely  to  the 
case  of  deeds.  So  deeds,  in  which  were  erasures,  were  held 
void,  because  they  appeared  on  the  face  of  them  to  Ih)  suspi- 
cious, 1:5  Vin.  .Vbr.  tit.  Faits,  'M,  3S;  IJro.  Abr.  Faits,  pi.  11,  re- 
ferring to  44  VAw.  -l,  c.  42.  X«)r  couhl  the  supposition  of  fraud 
have  been  the  ground  <»n  which  that  rule  wjis  founded  with  re- 
spect to  deeds;  for  in  .Moore,  35,  pi.  11  ♦>,  a  ileed  which  had  l)een 
rasid  was  held  void,  although  the  party  himself  who  uignlv  it 
had  made  the  erasure  ;  which  was  ptrmitting  a  party  t<F«hvail 
himsi'lf  of  his  own  fraiid  :  but  it  is  impossible  to  contend  that 
the  rule  can  l)c  carried  to  the  same  extent  as  to  bills;  nor  is  it 
denied  i)ut  that  if  the  l>lot  here  had  been  made  by  the  acceptor 
himself,  he  would  still  have  been  bound.  In  Keilw.  lt>2,  it  is 
said  that  if  A.  be  lM)und  to  15.  in  2U/.  and  IJ.  rase  out  10/.  all 
the  bond  is  void,  although  it  is  f()r  the  advantage  of  the  obligor; 
and  even  where  an  alteration  in  a  deed  was  made  by  the  con- 
sent of  both  the  jjartics,  still  it  was  helil  to  avoid  it,  2  Rol.  Abr. 
29,  letter  l\,  pi.  5  (Lord  Kmi/ou  observed  that  there  had  been 
decisions  to  the  contrary  since).  Fraud  could  not  be  the  [)rin- 
ciple  on  which  those  cases  were  determined:-  whereas  it  is  the 
only  })rinci[)le  on  which  the  rule  contended  for  can  be  hehl  to 
extend  to  bills  of  exchange,  but  which  is  rebutted  in  the  pres- 
ent case  by  the  facts  found  in  the  special  verdict.  According 
to  the  same  strictness,  where  a  mere  mistake  was  corrected  in  a 
deed,  and  not  known  by  whom,  it  was  held  to  avoid  it,  2  Kol. 
Abr.  29,  pi.  6 ;  and  it  does  not  abate  the  force  of  the  argument 
that  the  law  is  relaxed  in  these  respects,  even  as  to  deeds,  for 

(rt)   [Not  so  now;  C.  L.  P.  Act,  1852,  s.  55;  St.  Law  Rev.  Act,  1883,  s.  6.] 
(6)   3  T.  R.  151. 


MASTER    V.    MILLER.  1119 

the  question  still  remains,  whether  at  any  time  bills  of  exchange 
were  construed  with  the  same  rigour  as  deeds  ?     The  principle 
upon  which  all  these  cases  relative  to  deeds  were  founded  was, 
that  nothing  could  work  any  alteration  in  a  deed,  except  an- 
other deed  of  equal  authenticity;    and  as  the  party  who  had 
possession  of  the  deed  was  Iwund  to  keep  it  securely,  it  might 
well  be  presumed  that  any  material  alteration  even  by  a  stran- 
ger was  with  his  connivance,  or  at  least  through  his  culpable 
neo-lect.    In  many  of  the  cases  upon  the  alteration  of  deeds,  the 
form  of  the  issue  has  weighed  with  the  court ;  as  in  1  Rol.  Rep. 
40,  which  is  also  cited  in  Pigot's  Case,  11  Co.  27,  and  3Iichael  v. 
ScocJcwith,  Cro.  El.  120,  in  both  which  cases  the  alteration  was 
after  plea  pleaded ;  and  on  that  ground  the  court  held  it  was 
still  to  be  considered  as  the  deed  of  the  party  on  no7i  est  factum. 
Now  the  form  of  the  issue  in  actions  upon  deeds  and  those 
upon  bills  is  very  different ;  in  the  one  case,  the  issue  simply  is, 
whether  it  is  the  deed  of  the  i)arty  which  goes  to  the  time  of  the 
plea  pleaded  ?  as  appears  from  the  case  before  cited,  and  from  5 
Co.  119,  b,  and  Dy.  59  ;  but  here  the  issue  is,  whether  the  defend- 
ant promised  at  the  time  of  the  acceptance,  to  pay  the  conteiits  ? 
The  form  of  the  issue  is  upon  his  promise,  arising  by  implication 
of  law  from  the  act  of  acceptance,  which  is  found  as  a  fact  by  the 
special  verdict  agreeable  to  the  bill  declared  on  in  the  second 
count:    and  in  no    instance,   where    an    agreement   is    proved 
merely  as  evidence  of  a  promise,  is  the  party  precluded  from 
showing  the  truth  of  the  case.     Not  only  therefore  the  forms 
of  pleading  are  different  in  the  two  cases,  but  the   decisions 
which  have   been   made   upon    deeds,  from   whence    the    rule 
contended  for  as  to  erasures  and  alterations  is  extracted,  are 
altogether  inai^plicable  to  bills.     The  reasons  for  such  rigorous 
strictness  in  the  one  case,  do  not  exist  in  the  other.     On  the 
contrary,   all   the   cases  upon  bills  have   proceeded  upon    the 
most  liberal  and  equitable  principles  with  respect  to  innocent 
holders  for  a  valuable   consideration.     The   case   of  3Il7iet  v. 
G-ihson  (a)  goes  much  farther  than  the  present :  for  there  this 
Court,  and  afterwards  the  House  of  Lords,  held  that  it  was 
competent  to  inquire    into    circumstances    extraneous    to   the 
bill,  in  order  to  arrive  at  the  truth  of  the  transaction  between 
the  parties ;  although  such  circumstances  operated  to  establish 
a  different  contract  from  that  which  appeared  upon  the   face 
(a)  3  T.  R.  481,  in  B.  R.,  and  1  H.  Bl.  r,G9,  in  Dom.  Proc. 


llliO  MASTKi:    V.    MILLKK. 

of  tilt'  bill  itseU  ;  whcreus  the  uviclonte  given  in  this  ciise,  und 
the  facts  found  by  the  special  verdict,  are  in  onler  to  sh«»\v 
what  the  bill  really  was  ;  which  it  is  competent  for  these  par- 
ties to  do  a<^ainst  whom  no  fraud  can  be  imputed,  if  any  exist. 
If  tlic  blot  liiid  fallen  on  the  j>aper  by  nieie  accidt-nt,  it  cannot 
be  j)ittrii(lcd  that  it  Would  have  avoided  the  bill,  non  constat 
upon  this  linding  that  it  did  not  so  hapj)en.  ICven  if  felony 
were  i-ommittcil  by  a  third  person,  throu<;h  whose  hands  the 
])ill  passed,  althoiit^di  that  party  c(»uld  not  recover  tipon  it 
himself,  yet  his  crime  shall  not  alYett  an  innocent  party,  to 
Avhom  the  bill  is  indorsed  or  delivered  for  a  valuable  consider- 
ation. In  Mil/rr  V.  Jiact'  (d),  where  a  banknote  lia<l  Ik'cu  stolen, 
and  attcrwards  j)assed  bond  fi>lt'  to  the  plaintiff,  it  was  held 
that  he  mi<jht  recover  it  in  trovfr  aijainst  the  person  who  had 
stopped  it  for  the  real  owner.  And  the  same  point  was  held 
in  Peacock  v.  Rhoch'^  (A),  where  the  bill  was  payalile  to  order. 
Again,  in  J^rice  v.  Ne<ile  (c),  it  was  hehl  that  an  acceptor,  who 
had  jiaid  a  forgcfl  bill  to  an  innocent  indorsee,  could  not  re- 
cover back  the  moncv  fiom  hini.  Now  if  it  be  no  answer-  to 
an  action  upon  a  bill  against  the  acceptor  to  show  that  it  was 
a  forgery  in  its  (triginal  making  by  a  third  })erson*s  having 
feigned  the  handwriting  of  the  drawer,  still  less  ought  any 
subsequent  attempt  at  forgery,  even  if  that  had  been  found 
which  is  not,  to  weigh  against  an  innocent  holder.  lint  it 
would  have  been  imi)ossible  to  have  recovered  in  any  of  these 
cases  if  the  deed  had  been  forged  in  any  respect,  even  by 
strangers  to  it ;  which  shows  that  these  several  instruments 
cannot  be  governed  by  the  same  rules.  And  so  little  have  the 
forms  of  bills  of  exchange  and  notes  been  observed,  when  put 
in  opposition  to  the  truth  of  the  transaction,  that  in  JIuxhcU  v. 
Langstaffc  ((/)  the  Court  held,  in  order  to  get  at  the  justice  of 
the  case,  that  a  person,  who  had  indorsed  his  name  on  blank 
checks,  which  he  had  entrusted  to  another,  was  liable  to  an 
indorsee  for  the  sums  of  which  the  notes  were  afterwards 
drawn ;  and  yet  the  form  of  pleading  supposes  the  note  to 
have  been  a  perfect  instrument,  and  drawn  before  the  indorse- 
ment. But  the  case  which  is  most  immediately  in  point  to 
the  present,  is  that  of  Price  v.  Shute,  E.  33  Car.  2  in  B.  R.  (e) ; 

(a)  1  Burr.  452.  (d)  Dougl.  514. 

(h)  Dougl.  633.  (c)  2  Moll.  c.lO,  s.  28. 

(c)  3  Burr.  1354. 


MASTER    V.    MILLER.  1121 

there  a  bill  was  drawn  payable  the  1st  of  January ;  the  person 
upon  whom  it  was  drawn  accepted  it  to  be  paid  the  1st  of 
March;  the  holder,  upon  the  bill's  being  brought  back  to  him, 
perceiving  this  enlarged  acceptance,  struck  out  the  1st  of 
March,  and  put  in  the  1st  of  January ;  and  then  sent  the  bill 
to  be  paid,  which  the  acceptor  refused;  whereupon  the  payee 
struck  out  the  1st  of  January,  and  put  in  the  1st  of  March 
again ;  and  in  an  action  brought  on  this  bill,  the  question  was, 
whether  these  alterations  did  not  destroy  it ;  and  it  was  ruled 
they  did  not.  This  case  therefore  has  settled  the  doubt ;  and 
having  never  been  impeached,  but  on  the  contrary  recognised, 
as  far  as  general  opinion  goes,  by  having  them  inserted  in 
every  subsequent  treatise  upon  the  subject,  it  seems  to  have 
been  acted  on  ever  since.  And  it  would  be  highly  mischievous 
if  the  law  were  otherwise :  for  however  negligent  the  owner  of 
a  deed  may  be  supposed  to  be,  who  lets  it  out  of  his  possession, 
the  holder  of  a  bill  of  exchange  is  by  the  ordinary  course  of 
such  transactions  obliged  to  trust  it,  even  in  the  hands  of 
those  whose  interest  it  is  to  avail  themselves  of  this  sort  of 
objection.  For  it  is  most  usual  for  the  bill  to  be  left  for 
acceptance,  and  afterwards  for  payment,  in  the  hands  of  the 
acceptor,  who  may  be  tempted  to  put  such  a  blot  on  the  date 
as  may  not  be  observed  at  the  time,  through  the  confidence 
of  the  parties.  But  even  if  the  alteration  should  be  con- 
sidered as  having  destroyed  the  bill,  why  may  not  evidence 
be  given  of  its  contents,  upon  the  same  principle  as  governed 
the  case  of  Read  v.  Brookman  (ci)  ?  where  it  was  held  that 
l^leading  that  a  deed  is  lost  by  time  and  accident,  supersedes 
the  necessity  of  a  profert.  But  at  any  rate  the  plaintiffs  are 
entitled  to  recover  on  the  general  counts  for  money  paid,  and 
money  had  and  received,  on  the  authority  of  Tatloek  v.  Har- 
7-is  (J)  ;  for  though  it  is  not  expressly  stated  that  so  much 
money  was  received  by  the  defendant,  yet  that  is  a  necessary 
inference  from  the  fact  of  acceptance  Avliich  is  found. 

For  the  defendant  it  was  contended,  that  the  broad  principle 
of  law  was,  that  any  alteration  of  a  written  instrument  in  a 
material  part  thereof,  avoided  such  instrument ;  and  that  the 
rule  was  not  merely  confined  to  deeds,  though  it  happened  that 
the  illustration  of  it  was  to  be  found  among  the  old  cases  upon 
deeds   only   because   formerly  most  written   undertakings  and 

(a)  3  T.  R.  15L  (h)  3  T.  R.  174. 


IIl'J  MASTKK    \.    MlLLKIt. 

()l>li^Mtii»n.s  wiMf  in  tluit  form.  This  |triiiii|»l<«  o(  law  whm 
ftmiulfd  in  suuml  sense  ;  it  wum  ciileiihited  to  prevent  fraud, 
and  deter  men  from  tampering  with  written  seeuritiuH:  and  it 
would  1m'  direetly  repu^^iumt  to  the  |K»li«  y  '"f  sueh  a  law  to 
permit  the  holder  of  a  hill  to  attempt  ii  fraud  of  this  kind  with 
impunity  ;  which  w<ud<l  Ik*  the  ejuse,  if,  after  U-in^f  detei'ted  in 
the  altemj»t,  he  were  not  to  l»e  in  a  wiu-se  situati<»n  than  lie  wa8 
hefore.  If  any  difference  were  to  l>e  made  l)etween  hills  of 
exchan^^e  and  deeds,  it  shouhl  rather  l>e  to  enfon-e  the  rule 
with  greater  strictness  as  to  tin-  former  :  for  it  would  Ik;  strange 
that  hecause  they  were  more  op«'n  to  fraud  from  the  circum- 
stance of  passing  through  fnany  hands,  the  law  should  relax 
and  open  a  wider  door  to  it  than  in  the  case  of  deeds  where 
fraud  was  not  so  likely  to  Ik'  practised.  The  principle  laid 
down  in  Pii/<>t'M  (Utnf  (//)  is  n<»t  disputed  ius  applied  to  deeds. 
Hut  the  first  answer  attempted  to  Ik*  j^iven  is,  that  the  rule  as 
to  deeds  is  nui  <fviurix,  :uid  does  m<»1  cxttiid  toother  instruments 
of  an  inferior  nature,  U'caust-  it  arises  froni  the  solenui  sanction 
attcndiiit,'  the  I'Xciution  of  instruments  umler  seal.  As  to  this, 
it  is  sulliciciit  to  say  tiiat  no  such  reason  is  sujjijested  in  any  of 
the  hooks;  i)Ut  the  rule  stands  upon  the  hroad  j,'roun<l  of  policy, 
which  applies  at  least  as  stronj^ly  to  hills  as  to  deeils,  for  the 
reason  alM)ve  given.  Then  it  is  said  that  there  i.s  a  material 
distinction  hetween  the  several  issues  in  the  two  cases.  IJut 
the  difference  is  more  in  words  than  in  sense  ;  the  suJwtance 
of  the  issue  in  both  cases  is,  whether  in  point  of  law  the  party 
be  lialilc  to  answer  upon  the  instrument  declared  on?  and 
therefore  any  matter  which  either  avoids  it  ah  initio,  or  goes 
in  discharii^e  of  it,  may  he  shown  as  much  in  the  one  case  as  in 
the  other.  Upon  fioti  est  factum  the  question  is,  whether  in  law 
the  deed  produced  in  evidence  he  the  deed  of  the  party?  so  on 
non  ai<sunij>s(t  the  question  is,  whether  the  hill  given  in  evi- 
dence be  in  point  of  law  the  bill  acce[)ted  by  the  defendant? 
because  the  promise  only  arises  by  implication  of  law  upon 
proof  of  the  acceptance  of  the  identical  bill  accepted,  and 
given  in  evidence.  Now  neither  of  the  counts  in  the  declara- 
tion was  proved  by  the  facts  found.  For  in  the  first  count 
the  bill  is  dated  the  20th  of  March ;  but  as  there  is  no  evidence 
of  the  defendant's  having  accepted  such  a  bill,  of  course  the 
plaintiffs  are  not  entitled  to  recover  on  that  count.      Neither 

(o)  11  Co.  27. 


MASTER    V.    MILLER.  112S 

can  they  recover  on  the  second,  because  though  it  is  found 
that  he  accepted  a  bill  dated  the  26th  of  March,  as  there  stated, 
yet  inasmuch  as  the  bill  stated  to  have  been  produced  in  evi- 
dence to  the  jury  is  dated  the  20th,  of  course  the  evidence  did 
not  support  the  count.  With  respect  to  the  cases  cited  of  bills 
of  exchange  having  been  always  construed  by  the  most  liberal 
principles,  and  particularly  in  the  case  of  Mlnet  v.  Grihson^  the 
same  answer  may  be  given  to  all  of  them,  which  is,  that  so  far 
from  the  original  contracts  having  been  attempted  to  be  altered, 
all  those  actions  were  brought  in  order  to  enforce  the  observ- 
ance of  them  in  their  genuine  meaning  against  the  party  who, 
in  the  latter  case  particularly,  endeavoured  by  a  trick  to  evade 
the  contract :  whereas  here  the  contract  has  been  substantially 
altered  by  the  parties  who  endeavoured  to  enforce  it;  or  at 
least  by  those  whom  they  represent,  and  from  whom  they  de- 
rive title.  Then  the  case  in  Molloy^  of  Price  v.  Shute,  is  chiefly 
relied  on,  by  the  plaintiffs ;  to  which  several  answers  may  be 
given.  First,  the  authenticity  of  it  may  be  questioned ;  for  it 
is  not  to  be  found  in  any  reports,  although  there  are  several 
contemporaneous  reporters  of  that  period.  In  the  next  place, 
the  bill,  as  originally  drawn,  was  not  altered  upon  the  face  of 
it ;  and  therefore,  as  against  all  other  persons  at  least  than  the 
acceptor,  it  might  still  be  enforced.  But  principally  it  does 
not  appear  but  that  the  action  was  brought  against  the  drawer, 
who,  as  the  acceptor  had  not  accepted  it  accorcUng  to  the  tenor 
of  the  bill,  was  clearly  liable ;  as  the  payee  was  not  bound  to 
abide  by  the  enlarged  acceptance,  but  might  consider  it  as  no 
acceptance  at  all.  Then  if  this  bill  be  void  for  this  fraud,  no 
evidence  could  be  given  to  prove  its  contents,  as  in  the  case  of 
a  deed  lost ;  because  in  that  there  is  no  fraud.  But  even  if 
any  other  evidence  might  have  been  given,  it  is  sufficient  to 
say  that  in  this  case  there  was  none.  And  as  to  the  common 
counts,  if  the  general  principle  of  law  contended  for  applies 
to  bills  of  exchange,  it  will  prevent  the  plaintiffs  from  recover- 
ing m  any  other  shape.  Besides  which,  it  is  not  stated  that  the 
defendant  has  received  any  consideration ;  upon  which  ground 
the  case  of  Tatlock  v.  Harris  was  decided. 

In  reply  it  was  urged,  that  the  issue  was  not  whether  the 
defendant  had  accepted  this  bill  in  the  state  in  which  it  was 
shown  to  the  jury,  but  whether  he  had  promised  to  pay,  in 
consequence  of  having  accepted  a  bill  dated  the  26th  March, 


lll'l  MASIKl:    \.     Mll.l.Kl:. 

(liiiwn  by?  ifcr.  ;  ;iii(l  tliosr  lads  lu'liitr  louiul,  llu-  promise  iicr- 
L's.sarily  arises.  It  is  said  that  the  policy  ()t'  th»;  hiw  will  extend 
the  same  rule  to  the  avoidance  of  hills  of  exchanjife  which  have 
Ix'cM  altered  as  to  deeds  ;  Injcaiise  there  is  even  greater  reason  to 
guaid  jigainst  fraudulent  alterations  in  the  former  than  in  the 
latter  case.  To  which  it  may  he  answered  that  the  foundation 
of  tin-  nilr  fails  in  this  ease;  for  no  fraud  is  fouinl,  and  none  can 
he  picsuMicd:  and  it  is  admitte<l,  that  if  tin-  hlot  had  hecn  made 
hv  accident,  it  would  not  have  avoided  the  hill;  and  nothini,'  is 
stated  tn  slinw  that  it  was  not  done  l»y  aciidcnt.  Hi-sidcs,  the 
policy  of  the  law  is  equally  urLr<'nt  in  favour  of  the  plaint ilTs, 
it  heinpf  etpially  politic  to  compel  a  performance  of  honest  en- 
gagements. Here  the  defendant  is  only  i-e(|uii-e(l  ;n  do  that 
which  in  fact  and  in  law  he  has  promised  to  do.  And  if  he  Ihj 
not  liahle  on  this  contract,  he  will  he  [)roteeted  in  withholding 
pavment  of  that  money  which  he  has  received,  and  whiih  hy 
the  nature  of  his  engagement  he  uiulertook  to  re[)ay.  No  an- 
swer has  heen  givi'ii  to  the  ease  cited  from  Mnllnii :  for  thojigh 
the  case  is  not  n'i)ortcd  in  any  other  hook,  it  l)ears  every  mark 
of  auihenticity,  hy  noting  the  names  of  the  [)arties,  the  court  in 
which  it  was  determined,  and  the  time  of  the  decision  :  and  it 
has  been  adopted  by  subseiiiient  writers  on  the  same  subject. 
Again,  the  alteration  there  was  full  as  important  as  this,  for  it 
etpially  tended  to  accelerate  the  day  of  payment ;  antl,  lastly,  it 
is  not  denied  but  that  the  action  might  have  been  maintained  on 
the  bill  against  any  other  person  than  the  acceptor ;  which  is  an 
a<lniissi()n  that  the  policy  of  the  law  does  not  attach  so  as  to 
avoid  suih  instruments  upon  any  alteration,  for  otherwise  it 
would  have  avoided  the  bill  against  all  j)arties. 

Lord  Kin//on,  ('.  '].  —  The  question  is  not  whether  or  not 
another  action  may  not  be  framed  to  give  the  plaintiffs  some 
remedy,  but  whether  this  action  can  be  sustained  by  these 
parties  on  this  instrument?  —  for  the  instrument  is  the  only 
means  by  which  they  cm  derive  a  right  of  action.  The  right 
of  action  which  subsisted  in  favour  of  "Wilkinson  and  Cooke, 
could  not  be  transferred  to  the  phiintiffs  in  any  other  mode 
than  this,  inasmuch  as  a  chose  in  action  is  not  assignable  at  law. 
No  case,  it  is  true,  has  been  cited  either  on  one  side  or  the 
other,  except  that  in  Molloy^  of  which  I  shall  take  notice  here- 
after, that  decides  the  question  before  us  in  the  identical  case 
of  a  bill  of  exchange.     But  cases  and  iirinoijilcs  have  been  cited 


MASTER    V.    MILLER.  1125 

at  the  bar,  which,  in  point  of  law,  as  well  as  policy,  ought  to 
be  applied  to  this  case.  That  the  alteration  in  this  instrument 
would  have  avoided  it,  if  it  had  been  a  deed,  no  person  can 
doubt.  And  why,  in  point  of  policy,  would  it  have  had  that 
effect  in  a  deed  ?  Because  no  man  shall  he  permitted  to  take  the 
chayiee  of  committing  a  fraud  ivithout  running  any  risk  of  losing 
by  the  events  u-hen  it  is  detected.  At  the  time  when  the  casi^es 
cited,  of  deeds,  were  determined,  forgery  was  only  a  misde- 
meanour :  now  the  punishment  of  the  law  miglit  well  have  been 
considered  as  too  little,  unless  the  deed  also  were  avoided ;  and 
therefore  the  penalty  for  committing  such  an  offence  was  com- 
pounded of  those  two  circumstances,  the  punishment  for  the 
misdemeanour,  and  the  avoidance  of  the  deed.  And  though 
the  punishment  has  been  since  increased,  the  principle  still  re- 
mains the  same.  I  lay  out  of  my  consideration  all  the  cases 
where  the  alteration  was  made  by  accident :  for  here  it  is  stated 
that  this  alteration  was  made  while  the  bill  was  in  the  posses- 
sion of  Wilkinson  and  Cooke,  who  were  then  entitled  to  the 
amount  of  it ;  and  from  whom  the  plaintiffs  derive  title  ;  and  it 
was  for  their  advantage  (whether  more  or  less  is  immaterial 
here)  to  accelerate  the  day  of  payment,  which  in  this  commer- 
cial country  is  of  the  utmost  importance.  The  cases  cited, 
which  were  of  all  deeds,  were  decisions  which  applied  to  and 
embraced  the  simplicity  of  all.  the  transactions  at  that  time; 
for  at  that  time  almost  all  written  engagements  were  by  deed 
only.  Therefore  those  decisions,  which  were  indeed  confined  to 
deeds,  applied  to  the  then  state  of  affairs  :  but  they  established 
this  principle,  that  all  written  instruments  which  were  altered 
or  erased  should  be  thereby  avoided.  Then  let  us  see  whether 
the  policy  of  the  law,  and  some  later  cases,  do  not  extend  this 
doctrine  farther  than  to  the  case  of  deeds.  It  is  of  the  greatest 
importance  that  these  instruments,  which  are  circulated  through- 
out Europe,  should  be  kept  with  the  utmost  purity,  and  that 
the  sanctions  to  preserve  them  from  fraud  should  not  be  les- 
sened. It  was  doubted  so  lately  as  in  the  reign  of  George  the 
First,  in  Ward's  Case  («),  whether  forgery  could  be  committed 
in  any  instrument  less  than  a  deed,  or  other  instrument  of  the 
like  authentic  nature  ;  and  it  might  equally  have  been  decided 
there  that,  as  none  of  the  preceding  determinations  extended 
to  that  case,  the  policy  of  the  law  should  not  be  extended  to 

(a)  2  Str.  747,  and  2  Lord  Raym.  1461. 


Ulit)  MA>n:i:    \.    Mll.l.KK. 

it.  Hut  it  WHS  tlitii'  licltl  liiiit  the  piimiplo  exteuth-tl  to  otlu-r 
iiistiiuuL'iits  us  well  as  to  dct'ds,  iind  that  the  law  went  an  far 
us  the  polity.  It  is  on  the  sumu  reusouin^  that  I  have  foriiietl 
my  opinion  in  the  present  eiusu.  The  eiuse  cited  fri>ni  Molloi/, 
indeed,  at  lirst  made  u  different  impression  on  my  mind:  hut  on 
luokiiiir  over  it  with  ^aeat  attention,  I  think  it  is  n<>t  applicahle 
to  tliis  ease.  No  alterution  was  there  made  t»n  the  bill  itself; 
hut  the  party  tck  whiim  it  was  directed,  aeeepted  it  iis  payahle 
at  a  different  time,  and  afterwards  the  payee  struck  out  the 
enlarged  acceptance;  and  on  tlic  acceptor  refusing  to  pay,  it  is 
said  that  un  uction  wus  maintained  on  tlie  hill.  lUit  it  does  not 
suy  uguinst  whom  the  uction  was  iirought ;  and  it  could  not  have 
l)een  brought  against  the  uceeptor,  whose  uceeptunce  wasstruik 
out  by  the  party  himself  who  l)rought  the  uction.  Taking  that 
cjise  in  the  words  of  it,  "  thut  the  ulterutions  did  not  <K'stroy 
the  i)ill,"  it  does  not  affect  this  case:  not  un  iotu  «>f  the  bill  itself 
wus  ultered  ;  but  (»n  the  person  to  whom  the  liill  Wius  tlirected 
refusing  to  accept  the  bill  as  it  was  originally  drawn,  the  holder 
resorted  to  the  drawer.  Then  it  was  contended  that  no  fraud 
was  iiitnuKMl  in  iliis  <asc  ;  at  least  that  none  is  found;  but  I 
think  thai,  if  it  had  been  done  by  accident,  that  should  have 
been  found,  to  excuse  the  jjarty,  as  in  one  of  the  cases  where 
the  seal  of  the  deed  was  torn  ofT  by  un  infant.  With  respect 
to  the  argument  drawn  from  the  form  of  the  plea,  it  goes  the 
length  of  suying,  thut  u  defendant  is  liai>le,  on  non  asaumjmif, 
if  at  any  time  he  has  made  a  promise,  notwithstanding  u  suljse- 
quent  payment :  but  the  (juestion  is,  whether  or  not  the  defend- 
ant promised  in  the  form  stated  in  the  dcclarati(jn  ?  and  the 
substance  of  that  plea  is,  that  according  to  that  form  he  is  not 
bound  by  law  to  pay.  On  the  whole,  therefore,  I  am  of  opinion 
that  this  falsification  of  the  instrument  has  avoided  it ;  and  that, 
whatever  other  remedy  the  plaintiffs  may  have,  they  cannot 
recover  on  this  bill  of  exchange. 

Ashurstj  J.  —  It  seems  admitted  that,  if  this  had  been  a 
deed,  the  alteration  would  have  vitiated  it.  Now  I  cannot  see 
any  reason  why  the  principle  on  which  a  deed  would  have  been 
avoided  should  not  extend  to  the  case  of  a  bill  of  exchange. 
All  written  contracts,  whether  by  deed  or  not,  are  intended 
to  be  standing  evidence  against  the  parties  entering  into  them. 
There  is  no  magic  in  parchment  or  in  wax  ;  and  a  bill  of  ex- 
change, though  not  a  deed,  is  evidence  of  a  contract  as  much 


MASTER   V.    MILLER.  1127 

as  a  deed;  and  the  principle  to  be  extracted  from  the  cases 
cited  is,  that  any  alteration  avoids  the  contract.  If  indeed  the 
plaintiffs,  who  are  innocent  holders  of  this  bill,  have  been  de- 
frauded of  their  money,  they  may  recover  it  back  in  another 
form  of  action  :  but  I  think  they  cannot  recover  upon  this 
instrument,  which  I  consider  to  be  a  nullity.  It  is  found  by 
the  verdict  that  the  alteration  was  made  while  the  bill  was  in 
possession  of  Wilkinson  and  Cooke  ;  and  it  certainly  was  for 
their  advantage,  because  it  accelerated  the  day  of  payment. 
Now,  upon  these  facts,  the  jury  would  perhaps  have  been  war- 
ranted in  finding  that  the  alteration  was  made  by  them :  at  all 
events,  it  was  their  business  to  preserve  the  bill  without  any 
alteration.  If  Wilkinson  and  Cooke  had  brought  this  action 
they  clearly  could  not  have  recovered,  because  they  must 
suffer  for  any  alteration  of  the  bill  while  it  was  in  their  cus- 
tody :  then,  if  the  objection  would  have  prevailed  in  an  action 
brought  by  them,  it  must  also  hold  with  regard  to  the  plaintiffs 
who  derive'  title  under  them.  For  whenever  a  party  takes  a 
bill  under  such  suspicious  circumstances  appearing  on  the  face 
of  it,  it  is  his  duty  to  inquire  how  the  alteration  was  made ;  he 
takes  it  at  his  risk,  and  must  take  it  subject  to  the  same  objec- 
tion as  lay  against  the  party  from  whom  he  received  it.  Upon 
the  whole,  there  seems  to  be  no  difference  between  deeds  and 
bills  of  exchange  in  this  respect  in  favour  of  the  latter :  but,  on 
the  contrary,  if  there  be  any  difference,  the  objection  ought  to 
prevail  with  greater  force  in  the  latter  than  in  the  former ;  for 
it  is  more  particularl}^  necessary  that  bills  of  exchange,  which 
are  daily  circulated  from  hand  to  hand,  should  be  preserved 
with  greater  purity  than  deeds  which  do  not  pass  in  circulation. 
It  would  be  extremely  dangerous  to  permit  the  party  to  re- 
cover on  a  bill  as  it  was  originally  drawn,  after  an  attempt  to 
commit  a  fraud,  by  accelerating  the  time  of  payment.  For 
these  reasons,  therefore,  I  concur  in  opinion  with  my  Lord. 

Bxller,  J.  —  In  a  case  circumstanced  as  the  present  is,  in 
which  it  is  apparent,  as  found,  and  has  been  proved  beyond  all 
doubt,  that  the  bill  of  exchange  in  question  was  given  for  a  full 
and  valuable  consideration,  that  the  plaintiffs  are  honest  and 
innocent  holders  of  it,  and  that  the  defendant  has  the  amount 
of  the  bill  in  his  hands,  it  is  astonishing  to  me  that  a  jury  of 
merchants  should  hesitate  a  moment  in  finding  a  verdict  gen- 
erally for  the  plaintiffs,  more  especially  as  I  understand  it  wa:; 


1128  MASTKIC    V.    MlLLKIl. 

left  to  them  by  tlu-  Chief  Justice  to  read  the  bill  as  it  un- 
doubtedly was  drawn,  and  by  that  means  to  put  an  end  to  tlie 
(|Ut'stion  at  once.  It  was  iii,ditly  so  left  to  the  jury  by  his 
Lordship;  for  that  was  the  furtherance  of  the  justice  of  the 
case,  and  it  tended  to  prevent  cx[>ense,  litit,Mtion  and  drlay, 
which  are  death  to  trade.  That  the  defendant  cannot  be  suf- 
fered to  pocket  the  money  for  whiih  this  bill  was  drawn,  or  to 
enable  the  drawer  to  do  so,  but  that  sooner  or  later,  provided 
a  bankruptcy  do  not  intervene,  it  must  be  paid,  I  presume  no 
man  will  doubt.  The  drawer  has  received  the  value,  tlie  plain- 
tiffs have  paid  it,  and  the  defendant  has  it  in  his  hands.  On 
this  short  statement,  every  one  who  hears  me  must  anticipate 
me  in  saying  tliat  the  defendant  nnist  pay  it.  Nay,  if  actual 
forgery  had  been  conmiitted,  the  defendant  could  not  be  per- 
mitted to  retain  the  money:  he  must  not  get  1>000/,  by  the 
crime  of  another;  but,  in  such  a  case,  I  agree  it  would  be 
dilhcult  to  sustain  the  present  or  any  action  for  the  money  till 
something  further  had  happened  than  has  yet  l)een  done.  The 
law,  i)roceeding  on  i)rineiples  of  public  policy,  has  wisely  said 
—  That  where  a  case  amounts  to  felony,  you  shall  not  recover 
against  the  felon  in  a  civil  action;  but  that  rule  does  not  ai>- 
pear  by  any  printed  authority  to  have  been  extended  lieyond 
actions  of  trespass  or  tort,  in  which  it  is  said  that  the  trespass  is 
merged  in  the  felony.  That  is  a  rule  of  law  calculated  to  bring 
offenders  to  justice.  But  whether  that  rule  extend  to  any  case 
after  the  offender  is  brought  to  justice,  or  whether  at  any  time 
it  may  be  resorted  to  in  an  action  between  persons  guilty  of  no 
crime,  are  (questions  upon  which  I  have  formed  no  opinion, 
because  this  case  does  not  require  it.  Upon  this  special  verdict 
there  is  no  foundation  for  saying  that  any  one  has  been  guilty 
of  forgery,  nor  even  of  a  fraud,  as  it  strikes  my  mind.  Fraud 
or  felony  is  not  to  be  presumed ;  and,  unless  it  be  found  by  the 
jurj^  the  Court  cannot  imply  it.  Minet  v.  Gibson  is  a  most 
decisive  authority  for  that  proposition,  if  any  be  wanted,  and 
I  do  not  think  there  is  any  foundation  for  the  distinction  at- 
tempted to  be  taken  between  that  case  and  the  present.  It  has 
been  contended  that  the  party  there  recovered,  because  the 
nature  of  the  obligation  was  not  altered :  but  the  determina- 
tion did  not  proceed  entirely  on  that  ground,  but  on  this,  that, 
according  to  the  true  intent  and  meaning  of  the  parties,  the 
bill  was  intended  to  be  made  })iyal)le   to  bearer:   so  here  the 


MASTEll    V.    MILLER.  1129 

plaintiffs  do  not  attempt  to  enforce  the  contract  according  to 
the  terms  of  it,  but  accorcUng  to  that  form  by  Avhich  the  de- 
fendant originally  consented  to  be  bound,  as  stated  in  the  sec- 
ond count.  The  special  verdict  finds  that  Peel  and  Co.,  on  the 
26th  of  March,  1788,  drew  a  bill  of  exchange  on  the  defendant 
for  947?.  10s.,  payable  to  Wilkinson  and  Co. :  which  bill  as  the 
same  has  been  altered,  accepted,  and  written  upon,  is  set  out  in 
Jimc  verba.  Upon  iho,  fae-sim'de  copy  of  the  bill  set  out  in  the  ver- 
dict, there  appears  to  be  a  blot  over  the  date  :  and  the  jury  have 
thought  fit  to  read  it  as  it  now  stands,  the  20th.  I  must  con- 
fess I  should  never  have  read  it  so ;  for  seeing  that  there  was 
something  above  the  figure  0,  that  is  the  last  reading  which  I 
should  have  given  to  it.  I  should  have  said  on  the  face  of  the 
bill,  this  must  have  been  either  a  6  or  an  8 ;  it  could  not  have 
been  8,  because  the  0  is  as  high  as  the  2,  and  therefore  it  must 
be  a  6 :  but  the  jury  have  found  no  difficulty  in  saying  it  was  a 
6 ;  and  I  will  examine  presently  whether  there  be  any  objection 
to  let  it  remain  as  a  6.  The  verdict  further  finds  that  the 
defendant,  before  any  alteration  of  the  bill,  accepted  it;  and 
Wilkinson  and  Co.  indorsed  it  to  the  plaintiffs,  who  paid  a 
valuable  consideration  for  it.  Then  it  was  stated,  that  whilst 
the  bill  was  in  the  hands  of  Wilkinson  and  Cooke,  the  date, 
without  the  authority  of  the  defendant,  was  altered  by  persons 
unknown  from  the  26th  to  the  20th  of  March.  They  further 
find  that  the  words  "  23rd  of  June  "  were  inserted  at  the  top  of 
the  bill,  to  mark  that  the  bill  would  then  become  due ;  and  that 
the  alteration  and  the  blot  were  on  the  bill  when  it  was  de- 
livered to  the  plaintiffs.  This  is  the  full  substance  of  the  spe- 
cial verdict ;  and  there  is  neither  forgery,  felony,  nor  fraud, 
found  or  supposed  by  the  jury  ;  we  therefore  can  neither  in- 
tend nor  infer  it.  The  verdict  amounts  only  to  saying  there  is 
a  blot  on  the  bill,  but  how  it  came  there  we  don't  know ;  and 
we  beg  to  ask  the  Court  whether  the  circumstance  of  a  blot 
being  on  the  bill  which  we  cannot  account  for  makes  the  bill 
void.  Provided  I  have  accurately  stated  the  question,  surely 
such  a  verdict  is  without  precedent.  Suppose  a  child  had  torn 
out  a  bit  of  the  bill  on  which  the  top  of  the  6  is  written,  is  the 
holder  of  the  bill  to  loose  his  974?.  ?  or  is  the  defendant  to  get 
974?.  by  such  an  accident?  But  to  decide  whether  I  have 
accurately  stated  the  question  in  the  cause,  it  is  necessary  to 
examine  the  words  of   the  special  verdict   minutely,  and   by 


lloO  MA.STKK    V.    MILLKK. 

(U'<jreL*s.  'riif  jury  hiivo  suid  tluit  tlie  hill  was  ultert'il.  Tlie 
word  "  alturod  "  nmy  niise  n  Hus{iiri()u  iiiid  iilarin  in  our  inindit ; 
hut  let  not  our  judj^niunt  Ixj  run  away  with  liy  u  word,  without 
cxiiininiii^  the  true  sense  and  meaning  of  it  as  it  is  used  in  tlit; 
place  where  we  find  it.  How  was  it  altere«l,  what  was  the 
alteration,  when  was  it  made,  and  for  what  imrpose  ?  Tiie  jury 
liave  said  it  was  altered  hy  means  of  pnttinj^  a  hlot  over  the 
date:  hut  hy  whom  or  when  that  was  done  we  (h)n't  know, 
fuither  than  that  it  was  done  wliilst  the  hill  was  in  the  posses- 
sion of  Wilkinson  and  ('of)ke:  hut  we  «lo  not  tiinl  that  it  wii» 
done  for  any  had  purpose,  or  with  any  improper  view  wliatever. 
Upon  this  tindini;,  the  Court  are  iniund  to  say  it  was  done  in- 
iKxrently.  hut  tin*  jury  liave  also  said,  that  "June  -3r»l "  was 
inserted  at  the  tnji  of  the  hill  to  mark  when  the  hill  would 
Ixuome  due.  W'lu-n  and  hy  whon>  was  that  <lorje?  The  jtny 
have  not  said  one  wortl  upon  the  suhjeet.  Was  that  <lone  even 
durini,'  any  j>art  of  the  time  whilst  the  hill  was  in  tiie  possession 
of  Wilkinson  and  Cooke/  No.  It  is  consistent  with  the  tind- 
inpr,  that  tin-  plaintilYs,  who  are  found  to  Ik*  /»"«////</«•  holdei-s  of 
the  hill,  upon  readinjj  tlie  <iate  to  Iw  the  2Uth,  and  ealeulatin«j 
the  time  which  it  had  to  run  from  tliat  date,  put  ilown  "June 
2.h(l"  with  tlu'  most  [)erfect  innocence.  If  the  hill  had  U'cn 
oriu^inally  dati'd  on  tin;  'JOth,  the  '2-\rd  Jtuie  would  have  In-en 
tile  true  time  of  payment.  Hut  admitting  that  a  wroni^  date 
had  heen  i)Ut  down,  as  denotinj^  tlu'  time  of  payment,  is  tlu-re 
any  case  or  authoiity  which  says  that  that  circumstance  shall 
rcM(U'r  the  hill  void?  Every  hill  which  has  U-en  negotiated 
within  the  memory  of  man  is  marked  hy  some  holder  or  another 
with  the  day  when  it  will  heeome  or  is  su[)posed  to  heeome  due. 
That  in  some  sense  of  the  word  is  an  alteration  ;  for  it  makes 
an  addition  to  the  bill  which  was  not  there  when  it  was  drawn 
or  accepted.  But  was  it  done  fraudulently  ?  The  answer  is  — 
It  was  not,  and  therefore  it  is  of  no  avail.  So  here  the  jury 
have  not  said  it  was  done  fraudulently,  and  therefore  it  affords 
no  objection.  When  the  jury  have  stated  what  the  alteration 
is,  and  how  it  was  made,  namely,  by  making  a  blot,  and  having 
fixed  no  sinister  or  improper  motive  for  so  doing,  it  is  the  same 
as  if  they  had  said  only  "  here  is  a  blot  on  the  bill."  Suppose 
the  jur}'  had  said  in  a  few  words  that  this  bill  was  drawn,  in- 
dorsed, and  accepted,  by  the  defendant,  as  the  plaintiffs  allege, 
but  here  is  a  blot  upon  it  which  makes  the  date  look  like  the 


MASTER    V.    MILLER.  1131 

20th  instead  of  the  26th.     The  true  answer  would  have  been  — 
Blot  out  the  blot  by  your  own  understanding  and  conviction, 
and  pronounce  your  verdict  according  to  the  truth  of  the  case. 
It  was  nobly  said  in  another  place,   (I  heard  it  with  pleasure, 
and  thought  it  becoming  the  dignity  of  the  person  who  pro- 
nounced it,  and  the  place  in  which  it  was  pronounced,)  "  That 
the  law  is  best  af plied  when  it  is  subservient  to  the  honesty  of  the 
ease.     And  if  there  be  any  rule  of  law  which  says  you  cannot 
recover  on  any  instrument  but  according  to  the  terms  of   it, 
forlorn  would  be  the  case  of  plaintiffs.     By  the  temperate  rules 
of   law  we    must  square  our  conduct."'     The    honesty  of   the 
plaintiffs'  case  has  been  questioned  by  no  one  ;  and  therefore  I 
should  imagine  the  wishes  of  us  all  would  have  been  in  favour 
of  their  claim,  j^rovided  we  are  not  bound  down  by  some  stub- 
born rule  of  law  to  decide  against  them.     Here  again  I  must 
beg  leave  to  resort  to  Avhat  was  forcibly  said  in  another  place, 
upon  a  similar  subject,  and  which  I  shall  do  as  nearly  in  the 
words  which  passed  at  the  time  as  I  can :  because  they  carried 
conviction  to  my  mind ;  because  they  contain  my  exact  senti- 
ments, and  because  they  are  more  emphatical  than  any  which  I 
could  substitute  in  the  place  of  them.       "  The  question  (it  was 
said)  is  whether  there  be  any  rule  of  law  so  reluctant  that  it 
will   not  recede   from  words   to   enforce  the   intention  of   the 
parties.     I  believe  there  is  no  such  rule.     For  half   a  century 
there  have  been  various  cases  which  have  left  the   question  of 
forgery  untouched.     If  a  bill  be  forged,  the  acceptor  is  bound." 
Speaking  of  the  case  of  Stone  v.  Fr  eel  and,  it  was  said,  "  if  any 
one  say  that  a  case  is  not  law^  let  him  show  why  it  is  not  so. 
Judges  can  only  look  to  former  decisions.      This  has  been  a 
rule  in  the  commercial  world  above  20  years."      This  reasoning 
seems  to  me  to  be  sound  and  decisive,  if  it  apply  to  the  i^resent 
case ;  and  to  prove  that  it  does  apply,  I  need  only  quote  the 
case,    mentioned   at    the    bar,   of   Price  v.  Shute,   reported   in 
Beawes's  Lex.  Mercat.  tit.  Bill  of  Exchange,  pi.  222,  and  Moll. 
109.     There  a  bill  was  payable  1st  January,  and  the  person  to 
whom  it  was  directed  accepted  it  to  pay  on  the  1st  of  March, 
with  which  the  servant  returned  to  his  master,  who,  perceiv- 
ing  this   enlarged   acceptance,    struck    out  the   1st  of    March 
and  put  in  the  1st  of  January,  and  at  that  time  sent  the  bill 
for    payment,    which   the    acceptor    refused;    whereupon   the 
possessor    struck   out   the    1st  of    January   and   inserted   the 


11:32  MASTER    V.    MILLKi:. 

1st  i>i  Miircli  ;igiiiii.  Ill  an  action  brought  on  thi.s  bill,  the 
(luestion  was  whithtT  tlicse  alterutions  ilid  not  destroy  tiie 
bill;  anil  inlid  by  l^onl  Chief  Justice  Pemherton^  that  tjjey 
did  not.  Now,  on  reading  tliis  case,  I  cannot  consider  it 
in  any  other  liglit  than  as  an  action  brought  against  the  ac- 
ceptor; for  it  oidy  slates  what  passed  l)etween  those  parties. 
Here  then  is  a  rule  which  has  picvailcd  in  the  coinniercial 
world  for  110  years  :  it  stands  uncontradicted  and  uninipcached  : 
it  was  decided  by  great  authority  ;  and  as,  I  take  it,  on  delilx.'r- 
ation.  i^'or  when  it  is  said  to  have  been  in  H.  K.,  that  must 
either  have  Ikhij  in  this  court,  or  on  a  case  saved  by  Chief 
Justice  Piinltcrton  for  ids  own  opinion  :  which  was  a  common 
way  of  proceeding  in  those  days.  In  that  case  the  term  "alter- 
ation "  is  used,  and  therefore  we  need  not  be  frightened  or 
alarmed  at  that  word.  The  effect  of  the  alteration  was  to 
accelerate  the  payment;  so  it  is  here.  I5iit  in  one  respect  that 
case  goes  beyond  the  i)resent;  for  there  the  alteration  was 
made  by  the  plaintiff  liimself :  here  it  was  not.  It  is  true,  in 
that  ease,  when  the  plainlitV  lOiind  he  eouM  not  receive  the 
money  on  the  1st  of  January,  he  altered  it  back  to  the  1st  of 
March;  but  if  the  lirst  alteration  vitiated  the  bill,  no  sukse- 
quent  alteration  could  set  it  up  against  the  acceptor  without 
his  consent.  Here  the  {ilaintiffs  have  not  re-altered  the  bill; 
hut  they  have  acted  a  more  honest  part;  they  have  left  the 
bill  as  it  was  to  speak  for  itself;  but  they  have  treated  it  as  a 
bill  of  the  26th  of  Mareh  ;  they  havt-  ]>ioved  that  it  was  a  bill 
of  the  20th  of  March;  they  demanded  ])aymcnt  according  to 
that  date  :  and  the  jury  have  found  all  these  facts  to  be  true. 
And  it  is  material  to  consider  what  was  the  issue  joined  be- 
tween the  parties ;  for  there  is  a  great  deal  of  difference  be- 
tween the  plea  of  non  est  factum  and  the  present:  here  the 
question  is,  whether  the  drawer  made  such  a  bill,  and  whether 
the  defendant  accepted  it ;  and  this  is  found  by  the  jury.  Then 
the  case  of  Price  v.  Shute,  in  sense  and  substance,  is  a  direct 
authority  in  point  with  the  present ;  though  it  vary  in  a  minute 
and  immaterial  circumstance.  The  plaintiffs  in  treating  the 
bill,  and  making  a  demand  as  they  have  done,  seem  to  have 
followed  the  sober  advice  and  directions  given  by  Beawes  in 
pi.  190;  where  he  says,  "he  that  is  possessor  of  a  bill  which 
only  says  '  pay,'  without  mentioning  the  time  when,  or  that 
is  without  a  date,  or  not  clearly  and  legibly  written,  payable 


MASTER   V,    MILLER.  1133 

some  time  after  date,  &c.,  so  that  the  certam  precise  time  of 
payment  cannot  be  calculated  or  known,  must  be  very  circum- 
spect, and  demand  the  money  whenever  there  is  any  probable 
appearance  of  the  time  being  completed  that  was  intended  for 
its  payment .:  or  that  he  can  demonstrate  any  circumstance  that 
may  determine  it,  or  make  it  likely  wlien  it  shall  be  paid."  It 
is  impossible  that  this  writer  could  have  supposed  that  the  bill 
was  rendered  void  by  any  blot,  obliteration,  or  erasure :  on  the 
contrary,  he  tells  you  that  it  must  be  demanded  in  time,  and 
that  you  may  make  out  by  circumstances  or  other  evidence 
when  it  was,  or  was  likely  to  be,  payable.  That  has  been 
made  out  by  evidence  in  the  present  case.  Upon  this  head  I 
shall  only  add  one  authority  more,  which  is  Carth.  460,  where 
a  bill  was  accepted  after  a  day  of  payment  was  elapsed.  It 
was  objected  that  it  was  impossible  in  such  a  case  for  the 
defendant  to  pay  according  to  the  tenor  of  the  bill,  and  there- 
fore the  declaration  was  bad ;  but  the  Court  held  it  good,  and 
said  the  effect  of  the  bill  was  the  payment  of  the  money,  and 
not  the  day  of  payment.  So  here  the  defendant  having  ac- 
cepted this  bill,  whatever  may  be  the  construction  as  to  the 
date,  must  pay  the  money.  I  hold  that  in  this  case  there  is 
no  fraud  either  express  or  implied;  and  that,  as  the  plaintiffs 
have  proved  that  they  gave  a  valuable  consideration  for  the 
bill,  and  that  it  was  indorsed  to  them  by  those  through  whose 
hands  it  passed,  their  case  is  open  to  no  objection  whatever. 
But  I  will  suppose  for  a  moment,  though  the  case  do  not  war- 
rant it,  that  Wilkinson  and  Cooke  did  mean  a  fraud;  still  I 
am  of  opinion  that  would  not  affect  the  case  between  the 
plaintiffs  and  the  defendant.  It  is  a  common  saying  in  our  law- 
books, that  fraud  vitiates  everytliing.  I  do  not  quarrel  with 
the  phrase,  or  mean  in  the  smallest  degree  to  impeach  the 
various  cases  which  have  been  founded  on  the  proof  of  fraud. 
But  still  we  must  recollect  that  the  principle  which  I  have 
mentioned  is  always  applied  ad  hominem.  He  who  is  guilty 
of  a  fraud  shall  never  be  permitted  to  avail  himself  of  it ;  and 
if  a  contract  founded  in  fraud  be  questioned  between  the  par- 
ties to  that  contract,  I  agree,  that,  as  against  the  person  who 
has  committed  the  fraud,  and  who  endeavours  to  avail  himself 
of  it,  the  contract  shall  be  considered  as  null  and  void.  But 
there  is  no  case  in  which  a  fraud  intended  by  one  man  shall 
overturn  a  fair  and  bond  fide   contract  between   two   others. 


llo4  MASTKl:    \.    MILI.KI;. 

Even  as  Ix^twcen  the  parties  themselves  we  niiisi  mn  lui^'i-i 
tlie  lij^uiativc  laMgiiaL,a'  of  Lord  ChiL-f  .Iiistice  Wilmitt,  who 
said  that  "tlie  statute  hiw  is  like  a  tyrant:  where  hf  conius  he 
makos  all  voi<l;  hut  tlu?  connnon  law  is  like  a  nursing'  father, 
and  makes  void  only  that  part  where  the  fault  is,  and  jireservea 
the  rest."  2  Wils.  MjA.  If  :in  alteiatinn  1m.'  made  to  effeet  a 
fraud,  the  alteratiou  shall  l)e  laid  out  of  the  (piestion  ;  hut  still 
the  eontract  shall  exist  to  its  orij^inal  and  honest  purpose,  and 
shall  he  earried  into  execution  as  if  the  fraud  ha<l  never  ex- 
isted. A  ctise  somewhat  similar  to  this  is  to  i)e  found  in  the 
book  which  I  have  before  (pioted,  and  which  thoui^h  not  a 
bindint;  legal  authority,  yet,  where  its  propositions  are  founded 
on  practii^e  ami  jj^ood  sense,  is  deservim,'  of  soiue  attention. 
Beawes,  tit.  Bill  of  Kxehaufje,  pi.  135,  says,  "where  the  jxks- 
Bcssor  of  a  hill  payable  to  his  order  fails,  and  to  defraud  his 
crcditois  indorses  it  to  another,  who  negotiates  it,  and  effect- 
ually ri'ceives  the  value,  in<loising  it  again  to  a  third,  «S:c.,  and 
thougli  the  creditors,  having  discovered  the  fraud,  oppose  it, 
yet  the  aeceptant  must  pay  it  to  him  who  comes  to  receive  it, 
on  proof  that  he  paid  the  real  value  for  it."  Hut  it  has  lieen 
contended  that  there  is  an  analogy  between  bills  of  exchange 
and  deeds,  and  that  in  the  ease  of  deeds  any  erasure  or  alter- 
ation will  avoid  the  d"c(l.  In  answer  to  this,  fust,  I  deny  the 
analogy  between  bills  of  exchange  and  deeds,  and  there  is  no 
authority  to  sujjport  it.  In  the  case  of  deeds,  there  must  be 
a  profert  (^(i^,:\nd,  as  Ave  learn  from  10  Co.  '.i^  b.,  in  ancient 
times  the  judges  pronounced  upon  view  of  the  deed,  though 
Lord  Coke  says  that  practice  was  afterwards  altered.  But 
there  never  is  a  profert  of  a  l)ill  of  exchange ;  the  judges 
cannot  determine  on  a  view  of  that,  but  it  must  be  left  to  a 
jury  to  decide  upon  the  whole  of  the  evidence,  according  to 
the  truth  of  the  case.  Again,  in  the  case  of  joint  and  several 
bonds  the  objection  was  founded  on  its  being  a  substantial 
injury  to  the  defendant ;  for  if  it  were  considered  as  a  sole 
bond,  the  defendant  would  be  answerable  for  the  whole  debt ; 
but  if  it  were  a  joint  bond,  he  would  be  liable  to  only  half  or 
other  proportionable  part  of  it.  So  far  in  those  days  did  the 
Court  look  into  the  equity  of  the  case.  But  the  blot  on  this 
bill  is  no  injury  to  the  defendant ;  he  is  not  liable  to  pay  till 

(«)   [By  the  "Common  Law  Procedure  Act,   1852,"   s.  55,   it  was  made 
unnecessary  to  make  profei't.] 


MASTER    V.    MlLLEl!.  1135 

the  bill  became  due,  computing  the  time  from  the  original 
date;  then  he  must  pay  it:  he  alone  is  liable;  and  he  never 
can  be  charged  a  second  time  on  the  bill.  Secondly,  it  is  not 
universally  true  that  a  deed  is  destro^^ed  by  an  alteration,  or  by 
tearing  off  the  seal.  In  Palm.  403,  a  deed  which  had  erasures 
in  it,  and  from  which  the  seal  was  torn,  and  was  held  good,  it 
appearing  that  the  seal  was  torn  off  by  a  little  boy.  So  in  any 
case  where  the  seal  is  torn  off  by  accident  after  plea  pleaded, 
as  appears  by  the  cases  quoted  by  the  plaintiff's  counsel.  And 
in  these  days,  I  think  even  if  the  seal  were  torn  off  before  the 
action  brought,  there  would  be  no  difficulty  in  framing  a 
declaration,  which  would  obviate  every  doubt  upon  that  point, 
by  stating  the  truth  of  the  case.  The  difficulty  which  arose 
in  the  old  cases  depended  very  much  on  the  technical  forms 
of  pleading  applicable  to  deeds  alone.  The  plaintiff  made  a 
profert  of  the  deed  under  seal,  which  he  still  must  do,  unless 
he  can  allege  a  sufficient  ground  for  excusing  it ;  when  that 
is  done,  the  deed  or  the  profert  must  agree  with  that  stated 
in  the  declaration,  or  the  plaintiff  fails.  But  a  profert  of  a 
deed  without  a  seal  will  not  support  the  allegation  of  a  deed 
with  a  seal.  For  these  reasons  I  am  of  opinion  that  the  plain- 
tiffs are  entitled  to  judgment  on  the  second  count,  which  is 
drawn  upon  the  bill,  stating  it  to  bear  date  the  26th  March. 

But  supposing  there  could  be  any  doubt  on  this  part  of  the 
case,  I  am  also  of  opinion  that  the  plaintiffs  are  entitled  to  their 
judgment  on  either  of  the  two  counts  for  money  paid,  or  for 
money  had  and  received.  Here  it  is  material  to  recall  to  our 
minds  the  facts  found  by  the  verdict.  The  bill  produced  to  the 
jury  was  drawn  for  value,  and  was  accepted  by  the  defendant. 
He  is  not  found  to  have  no  effects  of  the  drawer's  in  his  hands ; 
and  his  accepting  the  bill  imports,  and  is  at  the  least  prima 
facie  evidence,  that  he  had:  and  on  this  A^erdict  he  must  be 
taken  to  have  the  amount  in  his  hands.  In  Burr.  1675,  A^ton^ 
J.,  said,  it  is  an  admission  of  effects.  Bjr  his  acceptance  he 
gave  faith  to  the  bill ;  and  the  plaintiffs,  giving  credit  to  that 
fact,  have  actually  paid  the  value  of  the  bill  on  receiving  it. 
On  this  case  the  money  paid  by  the  plaintiffs  is  money  paid  for 
the  use  of  the  defendant ;  for  the  money  was  advanced  on  the 
credit  of  the  defendant,  and  in  consequence  of  his  undertaking 
to  pay  the  bill.  Again,  the  money  in  the  defendant's  hands  is 
so  much  money  received  by  him  for  the   use  of  the  plaintiffs, 


1136  MASTKU    V.    Mll.LKIl. 

who  were  holders  of  the  bill  when  it  becaino  due.  Tlic  deft-nd- 
aiit  has  got  tliat  money  in  his  pocket,  which  in  justice  and 
conscience  the  plaintiffs  ought  to  have,  and  therefore  they  are 
entitled  to  recover  it  in  an  action  for  money  had  and  received. 
In  answer  to  this,  it  was  in  the  last  term  suggested  for  con- 
sideration, whctluu-  this  IjIU  after  the  alteration  wore  not  a 
chose  in  action,  which  could  not  ])e  assigned?  It  is  laid  down 
in  our  old  books,  that  for  avoiding  maintenance  a  chitxf  in  ar- 
tion  cannot  be  assigned,  or  granted  over  to  anotlier.  Co.  Litt. 
214  a.,  266  a.;  2  Roll.  45.  1.  40(^0-  '^le  good  sense  of  that 
rule  seems  to  me  to  be  very  questionable  ;  and  in  early  as  well 
as  modern  times  it  has  been  so  explained  away,  that  it  remains  at 
most  only  an  objection  to  the  form  of  the  action  in  any  case  (K). 
In  2  Roll.  Abr.  45  &  46,  it  is  admitted  that  an  oljligation  or 
other  deed  may  be  granted,  so  tluit  the  writing  jjasses :  but  it  is 
said  that  tlie  grantee  cannot  sue  for  it  in  his  own  name.  If  a 
third  i)erson  be  permitted  to  ac(iuire  the  interest  in  a  thing, 
whether  lie  is  to  bring  the  action  in  his  own  name,  or  in  the 
name  of  the  grantor,  does  not  seem  to  me  to  affect  the  question 
of  maintenance.  It  is  curious,  and  not  altogether  useless,  to 
see  how  the  doctrine  of  maintenance  has  from  time  to  time 
been  received  in  Westminster-hall.  At  one  time,  not  only  he 
who  laid  out  money  to  assist  another  in  his  cause,  but  he  tliat 
by  his  friendship  or  interest  saved  him  an  expense  which  he 
would  otherwise  be  put  to,  Avas  held  gnilty  of  maintenance  (<^). 
Bro.  tit.  Maintenance,  7,  14, 17,  &c.  Nay,  if  he  officiously  gave 
evidence,  it  was  maintenance  :  so  that  he  must  have  had  a  f^nh- 
pcena^  or  suppress  the  truth.  That  such  doctrine,  repugnant 
to  every  honest  feeling  of  the  lnun;in  licart,  should  be  soon  laid 
aside  must  be  expected.  Accordingly  a  variety  of  exceptions 
were  soon  made  ;  and,  amongst  others,  it  was  held,  that  if  a 
person  has  any  interest  in  the  thing  in  dispute,  though  on  con- 
tingency only,  he  may  lawfully  maintain  an  action  on  it ;  2  Roll. 

(a)  [See  a  curious  passage  iu  N.  S.  308;  and  now  by  the  Judicature 
Termes  de  la  Ley,  tit.  Chose  in  Act,  1873,  s.  25,  subs.  6,  an  assign- 
Action.]  .  ment  in  writing  with  notice  to  the 

(h)  [The  doctrine  that  there  can-  debtor  is  effectual  in  law.] 
not  be  an  assignment  of  a  debt  has  (r)   [See    the    judgment  of    Lord 

been  long  ago  exploded.     See  Xoy's  Ahimjer,  in  Finden  v.  Parker,  11  M. 

Maxims,    p.   72;     the    judgment    of  &  "W.  675,  682;    4  Ken.  Coram.   10th 

Willes,   J.,  in  Balfour  v.    The  Sea,  ed.,  31,  note;    Williamson  v .  Henley ,  & 

Fire,  and  Life  Assurance  Co.,  3  C.  B.,  Bing.  299.] 


MASTER    V.    MILLER.  1137 

Abr.  115  ;  but  in  the  midst  of  all  these  doctrines  on  maintenance, 
there  was  one  case  in  which  the  courts  of  law  allowed  of  an 
assignment  of  a  cliose  in  action,  and  that  was  in  the  case  of  the 
crown ;  for  the  courts  did  not  feel  themselves  bold  enough  to 
tie  up  the  property  of  the  crown,  or  to  prevent  that  from  being 
transferred.  3  Leon.  198  ;  2  Cro.  180.  Courts  of  equity  from 
the  earliest  times  thought  the  doctrine  too  absurd  for  them 
to  adopt  it,  and  therefore  they  always  acted  in  direct  contradic-. 
tion  to  it ;  and  we  shall  soon  see  that  courts  of  law  also  altered 
their  language  on  the  subject  very  much.  In  12  Mod.  554,  the 
Court  speaks  of  an  assignment  of  an  apprentice,  or  an  assign- 
ment of  a  bond,  as  things  which  are  good  between  the  j)arties, 
and  to  which  they  must  give  their  sanction  and  act  upon.  So 
an  assignment  of  a  chose  in  action  has  always  been  held  a  good 
consideration  for  a  promise.  It  was  so  in  1  Roll.  Abr.  29  ;  Sid. 
21 2,. and  T.  Jones,  222  ;  and  lastly,  by  all  the  judges  of  Eng- 
land in  Moulchdale  v.  Birchall,  2  Black.  820,  though  the  debt  as- 
signed was  uncertain.  After  these  cases,  we  may  venture  to  say 
that  the  maxim  was  a  bad  one,  and  that  it  proceeded  on  a  foun- 
dation which  fails.  But  still  it  must  be  admitted,  that  though  the 
courts  of  law  have  gone  the  length  of  taking  notice  of  assign- 
ments of  choses  in  action  and  of  acting  upon  them,  yet  in  many 
cases  they  have  adhered  to  the  formal  objection  that  the  action 
shall  be  brought  in  the  name  of  the  assignor,  and  not  in  the 
name  of  the  assignee.  I  see  no  use  or  convenience  in  preserv- 
ing the  shadow  when  the  substance  is  gone  ;  and  that  it  is  merely 
a  shadow,  is  apparent  from  the  latter  cases,  in  which  the  Court 
have  taken  care  that  it  shall  never  work  injustice.  In  Bottomley 
V.  Brooke,  C.  B.  Mich.  22  G.  3  (a),  which  was  debt  on  bond,  the 
defendant  pleaded  that  the  bond  was  given  for  securing  103Z. 
lent  to  the  defendant  by  E  Chancellor ;  and  was  given  by  her 
direction  in  trust  for  her,  and  that  E.  Chancellor  was  indebted 
to  the  defendant  in  more  money.  To  this  plea  there  was  a  de- 
murrer, which  was  withdrawn  by  the  advice  of  the  Court.  In 
Budge  v.  Birch  (5),  K.  B.  Mich.  25  G.  3  (c),  on  the  same  plead- 
ings there  was  judgment  for  the  defendant.     And  in  Winch  v. 

(rt)  1  T.  R.  621.  them  was  rather  to  be  restrained  than 

(6)  But  these  cases  have  been  dis-  extended.    [This  is,  however,  at  vari- 

approved  of.     Tucker  v.  Tucker,  4  B.  ance  with  the  policy  of  the  Second  C. 

&  Ad.  745.     And  see  Wake  v.  Tinkler,  L.  P.  Act,  1854,  and  the  Judicature 

16  E.  36,  wtiere   Lord   ElJenborough  Acts.] 

said,  that  the  doctrine  laid  down  in  (c)  IT.  II.  622. 


1138  MASTKlt    V.    MILLKK. 

Keeley^  K.  B.  Ilil.  27  (i.  '^  (a),  where  the  obligee  unsigned  over 
a  bond  and  afterwards  l)ecanie  a  bankrupt,  tlie  Court  held  that 
he  might  notwithstanding  maintain  the  action.  Mr.  J.  Axhurst 
said,  "  It  is  true  that  formerly  courts  of  law  did  not  take  nt)tice 
of  an  ecjuity  or  a  trust ;  but  (tf  late  years,  as  it  hits  been  found 
productive  of  great  expense  to  send  the  [larties  to  tiie  otlier 
side  of  the  hall,  wherever  this  Court  have  seen  that  the  justice 
.of  the  case  has  been  clearly  with  tlie  plaintitY,  they  have  not 
turned  iiim  round  u[)on  this  objection.  Then  if  this  Court  will 
take  notice  of  a  trust,  why  should  they  not  f»f  an  eciuity?  It 
is  certainly  true  that  a  chose  in  action  cannot  strictly  l>e  as- 
signed ;  but  this  Court  will  take  notice  of  a  trust,  and  see  who 
is  beneficially  interested."  Hut  admitting  that  on  account  of 
this  «iuaint  maxim  there  may  still  l)e  some  cases  in  which  an 
action  cannot  be  maintained  I)y  an  assignee  of  a  chose  in  action 
in  his  own  name,  it  remains  to  1h'  considered,  v/hether  that  ob- 
jection ever  did  iiold  or  ever  can  hold  in  the  case  of  a  mercan- 
tile instrument  or  transaction.  'Hu-  law-nu'ichant  is  a  system 
of  eipiity,  founded  on  the  rules  of  etpiity,  and  govi'rned  in  all 
its  parts  by  plain  justice  and  good  faith.  In  Pdlan  v.  Van 
Mierop^  Lord  Mansfield  said,  if  a  man  agree  to  do  what  if  finally 
executed  would  make  him  liable,  as  in  a  court  of  ecjuity,  s(^,  in 
mercantile  transactions,  the  law  looks  on  the  act  as  done.  I 
can  find  no  instance  in  which  the  f)bjection  has  j)revailed  in  a 
mercantile  case;  and  in  the  two  instances  most  universally 
in  use,  it  undoubtedly  iloes  not  hold;  that  is,  in  the  cases  of 
bills  of  exchange  and  policies  of  insurance.  The  first  is  the 
present  case;  and  bills  are  assignable  by  the  custom  of  mer- 
chants; so  in  the  case  of  policies  of  insurance  ;  till  tiie  late  act 
was  made,  re(|uiring  that  the  name  of  the  person  interested 
should  be  inserted  in  the  policy,  the  constant  course  was  to 
make  the  policy  in  the  name  of  the  broker ;  and  yet  the  owner 
of  the  goods  maintained  an  action  upon  it.  Circulation  and 
the  transfer  of  property  are  the  life  and  soul  of  trade,  and  must 
not  be  checked  in  any  instance.  There  is  no  reason  for  con- 
fining the  power  of  assignment  to  the  two  instruments  which  I 
have  mentioned ;  and  I  will  show  you  other  cases  in  which  the 
Court  have  allowed  it :  1st,  In  Fenner  v.  Mears,  where  the  de- 
fendant, a  captain  of  an  East  Indiaman,  borrowed  lOOOZ.  of 
Cox,  and   gave    two    Respondentia    bonds,  and  signed   an   in- 

(a)  Ante,  1  T.  K.  G19. 


MASTER    V.    MILLER.  1139 

dorsement  on  the  back  of  them,  acknowledging  that,  in  case 
Cox  chose  to  assign  the  bonds,  he  held  himself  bound  to 
pay  them  to  the  assignees.  Cox  assigned  them  to  the  plain- 
tiff, who  was  allowed  to  recover  the  amount  of  them  in  an 
action  for  money  had  and  received.  De  G-rey,  Chief  Justice, 
in  disposing  of  the  motion  for  a  new  trial,  said  (a),  Responden- 
tia bonds  have  been  found  essentially  necessary  for  carrying 
on  the  India  trade ;  but  it  would  clog  these  securities,  and  be 
productive  of  great  inconvenience,  if  they  were  obliged  to 
remain  in  the  hands  of  the  first  obligee.  This  contract  is 
therefore  devised  to  operate  upon  subsequent  assignments,  and 
amounts  to  a  declaration,  that  upon  such  assignment  the  money 
which  I  have  borrowed  shall  no  longer  be  the  money  of  A.,  but 
of  B.,  his  substitute.  The  plaintiff  is  certainly  entitled  to  the 
money  in  conscience,  and,  therefore,  I  think,  entitled  also  at 
law :  for  the  defendant  has  promised  to  pay  any  person  who  is 
entitled  to  the  money.  So  in  the  present  case,  I  say  the  plain- 
tiffs are  in  conscience  entitled  to  the  money,  and  the  defend- 
ant has  promised  to  pay,  or,  which  is  the  same  thing,  is  by  law 
bound  to  pay  the  money  to  any  person  who  is  entitled.  The 
very  nature  and  foundation  of  an  action  for  money  had  and 
received  is,  that  the  plaintiff  is  in  conscience  entitled  to  the 
money ;  and  on  that  ground  it  has  been  repeatedly  said  to  be 
a  bill  in  equity.  We  all  remember  the  sound  and  manly  opin- 
ion given  by  my  Lord  Chief  Justice  here  in  the  beginning  of 
the  last  term  on  a  motion  made  by  Mr.  Bearcroft  for  a  new 
trial,  wherein  he  said,  if  he  found  justice  and  honesty  on  the 
side  of  the  plaintiff  here,  he  would  never  turn  him  round,  in 
order  to  give  him  the  chance  of  getting  justice  elsewhere. — 
2ndly,  Clarke  v.  Adaii\  sittings  after  Easter,  4  Geo.  3 :  Debray, 
an  officer,  drew  a  bill  on  the  agent  of  a  regiment  payable  out  of 
the  first  money  which  should  become  due  to  him  on  account 
of  arrears  or  non-effective  money.  Adair  did  not  accept  the 
bill,  but  marked  it  in  his  book,  and  promised  to  pay  when 
effects  came  to  hand.  Debray  died  before  the  bill  was  paid ; 
and  the  administratrix  brought  an  action  against  Adair  for 
money  had  and  received.  It  was  allowed  by  all  parties  that 
this  was  not  a  bill  within  the  custom  of  merchants :  but  Lord 
Mansfield  said  that  it  is  an  assignment  for  valuable  considera- 
tion, with  notice  to  the  agent ;  and  he  is  bound  to  pay  it.     He 

(rt)  2  Bl.  Rep.  1272. 


1140  MASTKi:    V.    MILLKK. 

said  la-  ivinoinhertMl  a  easo  in  Chaiieery,  wlieiv  an  ajjent  under 
the  like  uiiounistances  had  paitl  the  money  to  tlie  administrator, 
and  was  deereed  notwithstanding^  to  pay  to  the  pei-Hon  in  whuMU 
favour  tlie  bill  was  drawn.  —  3nlly,  In  hrael  v.  Dowfltm,  ('.  H. 
East.  21»  a.  3  (a),  A.  l>ein«;  indebted  to  H.,  ;ind  B.  indebted  to 
C,  H.  pave  an  order  to  A.  to  pay  ('.  the  money  due  from  A.  to 
H. ;  whereu[»on  ('.  lent  H.  a  further  sum,  and  tlie  onh-r  wjuj 
aceepted  l)V  A.  <  >n  the  refusal  of  A.  to  coinply  witli  the  order, 
it  was  held  that  (".  mii,dit  maintain  an  actitui  for  money  had 
and  reeeived  against  him.  And  Mr.  J.  I/xith  expressly  saitl  lie 
thou<,dit  in  mereantile  transaetions  of  this  .sort  sueh  an  under- 
taking may  be  eonstrued  to  make  a  man  liable  for  money  had 
and  received.  This  opinion  was  eited  with  approUition  in  the 
House  of  Lords  in  (fif>»on  v.  M'met.  Lastly,  I  come  to  the 
ease  of  Tatlock  v.  Iftrrin,  (3  T.  K.  1S2,)  in  which  Lord  Kent/on 
in  deliveriui^  the  judLjment  of  the  court,  said  it  "was  an  aj)pro- 
priation  of  so  nni<li  mom-y  to  be  paid  to  the  pei'son  who  should 
luMoiiic  the  lioldiT  <if  tlic  liill.  We  consider  it  as  an  agreement 
between  all  the  part  it's  to  appropriate  so  much  property  to  Imj 
carried  to  the  account  of  the  holder  of  the  bill;  and  this  will 
satisfy  the  justice  of  the  case,  without  infringing  any  rule  of 
law."  All  these  cases  prove  that  the  remedy  will  K*  enlarged, 
if  necessary,  to  attain  the  justice  of  the  c  ise  ;  and  that  if  the 
l)laintiff  has  justice  and  conscience  on  his  side,  and  the  defend- 
ant has  notice  only,  the  plaintiff  shall  recover  in  an  action  for 
m(»nev  had  and  received.  Let  us  not  be  le.ss  lil>eral  than  our 
predecessors,  and  even  we  ourselves,  have  been  on  former  occa- 
sions. Let  us  recollect,  as  Loril  Chief  .lustice  Wilmot  said  in 
the  case  I  have  alluded  to,  that  not  only  f>oni  juiUcin  ext  mnpli- 
are  jurisdictionem,  but  ampUare  juatitiam  :  and  that  the  common 
law  of  the  land  is  the  birthright  of  the  subject,  under  which  we 
are  bound  to  administer  him  justice,  without  sending  him  to  his 
writ  of  subpoena,  if  he  can  make  that  justice  appear.  The  jus- 
tice, equity,  and  good  conscience  of  the  case  of  these  plaintiffs 
can  admit  of  no  question;  neither  can  it  be  doubted  but  that 
the  defendant  has  got  the  money  which  the  plaintiffs  ought  to 
receive.  For  these  reasons,  I  am  of  opinion  that  the  plaintiffs 
are  entitled  to  judgment  on  either  of  these  three  counts  in  the 
declaration,  namely,  on  the  count  on  the  bill  of  exchange, 
stating  the  date  to  be  the  26th;  or  on  the  count  for  money 
paid ;  or  on  the  count  for  money  had  and  reeeived. 

(a)  1  II.  Bl.  242. 


MASTER    V.    MILLER.  H^l 

arose,  J. -The  only  question  in  this  case  is,  whether  there 
appears  on  the  face  of  this  special  verdict  a  right  of  action  in 
the  plaintiffs  on  any  of  the  counts.     The  first  count  is  on  a  bill 
of  exchange  dated  the  20th  of  March;  but,  there  being  no  proof 
of  any  bill  of  that  date,  there  is  clearly  an  end  of  that  count. 
The  second  is  on  a  bill  dated  the  26th  of  March;  but  the  de- 
fendant objects  to  the  plaintiffs'  recovering  on  this  count  also, 
because  the  bill  having  been  altered  while  it  was  in  the  hands 
of  W  ilkmson  and  Cooke,  it  is  not  the  same  bill  as  that  which 
was  accepted;  and  that  is  the  true  and  only  question  in  the 
cause.     My  idea  is,  that  the  plaintiffs'  right  of  action,  as  stated 
in  this  count,  cannot  be  maintained  at  common  law,  but  is  sup- 
por  ed  only  on  the  custom  of  merchants,  which  permits  these 
particular  chases  vn  action  to  be  transferred  from  one  person  to 
another.      The  plaintiffs,  as  indorsees,  in  order  to  recover  on  this 
bill,  must  prove  the  acceptance  by  the  defendant,  the  indorse- 
ment from  Wilkinson  and  Cooke  to  them,  and  that  this  was 
the  bill  which  was  presented  when  it  became  due.     No^^-  has  all 
this  been  proved?     The  bill  was  drawn  on  the  26th  of  .March 
payable  at  three  months'  date  ;  the  defendant's  engagement  by 
his  acceptance  was,  that  it  should  be  paid  when  it  became  due 
according  to  that  date  ;  but  afterwards  the  date  was  altered ;  the' 
date  I  consider  as  a  very  material  part  of  the  bill,  and  by  the 
alteration   the   time  of  payment  is  accelerated  several   days- 
according  to  that  alteration,  the  payment  was  demanded  on  L 
23rd  of  June,  which  shows  that  the  plaintiffs  considered  it  as  a 
bill  di^wn  the  20th  of  March ;  then  the  bill  which  was  produced 
m  evidence  to  the  jury  was  not  the  same  bill  which  was  drawn 
by  Feel  and  Co.,  and  accepted  by  the  defendant ;  and  here  the 
cases  which  were  cited  at  the  bar  apply.     Pigot^,  i,  the  leading 
case;  from  that  I  collect,  that  when  a  deed  is  erased,  whereb? 
1    becomes  void,  the  obligor  may  plead  non  est  factum,  and  give 
the  matter  in  evidence,  because  at  the  time  of  plea  pleaded  it 
was  not  hisdeed;  and,  2ndly,  that  when  a  deed  is  altered  in  a 
material  pomt  by  himself,  or  even  by  a  stranger,  the  deed  there- 
by becomes  void.     Now  the  effect  of  that  determinarion  is,  that 
a  materia    alteration  in  a  deed  causes  it  no  longer  to  be  the 
same  deed.     Such  is  the  law  respecting  deeds  (a)  :  but  it  is  said 

9^  ml'of  ^tw!f' '"'  ?"'  ''  ''"''■  ''  '''  ''''  '""''^  ''  "'^--^"'-^  "*  -«^--^-«^ 
profet  of  a  leer  T  /--/-'-""^  Po^n^s  or  places,  and  that  the  m<)es  in 
P^ofeu  of  a  deed  is  stated  to  be  that      ancient  time  did  judge  uvon  their  view 


nil'  MASTKi:    V.    MiLLKU. 

thiit  tli;it  l;iu'  does  not  fXteiiil  to  the  iMsu  of  u  l»ill  •>{  eXih.iu^e  ; 
whether  il  do  or  not  must  depend  on  tlie  |niiui|»le  on  which 
this  hiw  is  founded.  The  policy  of  the  law  luw  been  alicjuly 
stilted,  nunielV')  thiitii  man  shilU  not  take  the  chance  of  commit- 
tint;  a  tVaud,  and,  when  that  fiau<l  is  tletected,  recover  on  the 
iiislnimt'iit  as  it  was  orii^inally  made.  In  surh  a  ease  the  law 
intervenes,  and  says,  that  the  deeil  thus  alleicd  no  longer  con- 
tinues the  same  deed,  and  that  no  person  can  maintain  an  action 
upon  it.  In  reading'  that  and  the  other  cases  cited,  I  olwerve 
that  it  is  in)where  said  that  the  tleeil  is  void  merely  U'cause  it 
is  the  case  of  a  deed,  hut  iK'cause  it  is  not  the  sanu;  deed.  A 
deed  is  nothing  m()re  than  an  instrument  or  aj^recment  under 
seal:  and  the  principle  of  those  cases  is,  that  any  alteration  in  a 
material  jtart  of  any  instrument  or  a«;reement  avoids  it,  iM'cause 
it  therehy  ceases  to  l)e  the  same  instrument.  Ami  this  principle 
is  fouMded  on  Ljreat  ijood  sen.se,  l)ecause  il  tends  to  prevent  the 
j)arty,  in  whosi-  favour  it  is  made,  from  attemptini;  to  make  any 
alteration  in  it.  This  priiu-iple  too  appears  to  nu'  as  applicable 
to  oni-  kind  of  instrunu-nt  as  to  another.  Hut  it  has  heen  con- 
tended tliat  thi-re  is  a  ditTen-nci'  hetween  an  alterali(Ui  of  hills 
of  exchan;,a'  and  deeds;  hut  I  think  that  t^he  reason  of  the  rule 
affects  the  former  more  stronj,dy,  and  the  alteration  of  them 
should  he  more  penal  than  in  the  latter  case.  Supposinj^  a  hill 
of  exchange  were  drawn  for  100/.,  and  after  acceptance  the  sum 
was  altered  to  lOOO/. :  it  is  m)t  pretended  that  the  acceptor  shall 
he  liahle  to  pay  the  1000/.  :  and  I  say  that  he  cannot  Ixj  compelled 
to  pay  the  100/.,  accordinj^  to  his  acceptance  of  the  hill,  hecause 
it  is  not  the  same  hill.  So  if  the  name  of  the  payee  had  heen 
altered,  it  would  not  have  continued  the  same  hill.  And  the 
alteration  in  every  respect  prevents  the  instrument's  continuing' 
the  same,  as  well  as  when  applied  to  a  hill  as  to  a  deed.  It  was 
said  that  Piyofs  Case  only  shows  to  what  time  the  issue  relates : 
but  it  goes  further,  and  shows,  that  if  the  instrument  be  altered 
at  any  time  before  plea  pleaded,  it  becomes  void.  It  is  true  the 
Court  will  inquire  to  what  time  the  issue  relates  in  both  cases. 

the  deed  to  be  void,  hut  of  late  times  200.    But  if  tliejrrantec  be  sufficiently 

have  left  that  to  be  tried  by  the  jury  if  identified,  such  an  addition  as  filling 

the  rasing  or  interlining  irere   before  up  a  blank  left  for  his  Christian  name 

delivery.    On  similar  principles  a  deed,  will  not  hurt.     Eaghtnnx.  Gutteridge, 

the  name  of  the  grantee  in  which  is  11  M.  &  W.  465.     So  tilling  in  a  blank 

introduced    after    ilelivery,    is   void.  with  the  date  does  not  vitiate.    Keane 

Hibbleichite  v.  iVWorine,  6  M.  &  W.  v.  Smallbone,  17  C.  B.  179. 


MASTER    V.    .MILLER,  1143" 

Then  to  what  time  does  the  issue  relate  here  ?  The  plaintiffs  in 
this  case  undertook  to  prove  everything  that  would  support  the 
assumj^sit  in  law,  otherwise  the  assumpsit  did  not  arise.  It  was 
incumbent  on  them  to  prove  that,  before  the  action  was  brought, 
this  identical  bill,  which  was  produced  in  evidence  to  the  jur}-, 
was  accepted  by  the  defendant,  presented,  and  refused :  but  if 
the  bill,  which  was  accepted  by  the  defendant,  were  altered  be- 
fore it  was  presented  for  payment,  then  that  identical  bill, 
which  was  accepted  by  the  defendant,  was  not  presented  for 
payment;  the  defendant's  refusal  was  a  refusal  to  pay  another 
instrument:  and  therefore  the  plaintiffs  failed  in  proving  a 
necessary  averment  in  their  declaration.  If  the  bill  had  been 
presented  and  refused  payment,  and  it  had  been  altered  after 
the  action  was  brought,  then  it  might  have  been  like  the  case 
mentioned  at  the  bar.  It  was  contended  at  the  bar,  that  the 
inquiry  before  a  jury  in  an  action  like  the  present  should  be, 
whether  or  not  the  defendant  promised  to  pay  the  bill  at  the 
time  of  his  acceptance :  but  granting  that  he  did  so  promise, 
that  alone  will  not  make  him  liable  unless  that  same  bill  were 
afterwards  presented  to  him.  I  will  not  repeat  the  observations 
which  have  been  already  made  by  my  lord  on  the  case  in  Mol- 
loy :  but  the  note  of  that  case  is  a  very  short  one  ;  and  the  prin- 
ciple of  it  is  not  set  forth  in  any  other  book,  nor  indeed  do  the 
facts  of  it  sufficiently  appear.  I  doubt  also  whether  it  was  a  de- 
termination of  this  Court :  it  only  appears  that  there  was  a  point 
made  at  Hisi  Prius,  but  not  that  it  was  afterwards  argued  here. 
But  it  has  been  said  that  a  decision  in  favour  of  the  plaintiffs  will 
be  the  most  convenient  one  for  the  commercial  world ;  but  that 
is  much  to  be  doubted;  for  if,  after  an  alteration  of  this  kind^ 
it  be  competent  to  the  Court  to  inquire  into  the  original  date 
of  the  instrument,  it  will  also  be  competent  to  inquire  into  the 
original  sum  and  the  original  payee,  after  they  have  been  altered, 
which  Avould  create  much  confusion,  and  open  a  door  to  fraud. 
Great  and  mischievous  neglects  have  already  crept  into  these 
transactions  ;  and  I  conceive  that  keeping  a  strict  hand  over  the 
holders  of  bills  of  exchange,  to  prevent  any  attempts  to  alter 
them,  may  be  attended  with  many  good  effects,  and  cannot  be 
productive  of  any  bad  consequences,  because  the  party  who  has 
paid  a  value  for  the  bill  may  have  recourse  to  the  person  who 
immediately  received  it  from  him.  On  these  grounds,  there- 
fore, I  am  of  the  opinion  that  the  plaintiff's  cannot  recover  on 


11  U  MASTKU    V.    MlM.KIt. 

the  second  count.     Neither  <hi   I   think   that   they  can   rfeover 
on  the  ^rtMieruI  <oiint,  U'ciiUHc  it  is  nut  Htated  tus  ii  fact  in  thu  ver- 
dict thiit  the  defeinhmt  received  tin-  money,  the  valiu*  of  the  hill. 
Per  curiam.  .Ind^Mnent  fur  the  defeiuhmt. 


MASTKK   V.  MILLKH,  IN  TMK  KXCIIEt^lKK  rMAMHKlt,  IN   KKItoR. 

<  )ii  helwdf  of  the  pliiintitT,  Wootl  arj^uetl  as  foUows:  It  \\n» 
heeii  conten(h'd,  on  the  other  sid»',  in  tlie  court  ludow,  that  tho 
uccei)tor  of  the  iiill  was  dischari,'ed  from  liis  acceptance  hy  the 
alteration  itf  the  date,  tln)Ui,di  madi-  witiiout  the  kn«»\vh'«ij:re  of 
the  holder:  l)Ut  no  case  has  U'cn  cited  to  show,  that  an  altera- 
tion, such  as  was  ma«U'  in  tiie  present  instance,  would  vitiate 
a  written  instrument,  except  it  were  a  deed.  Hut  there  is  a 
material  dilTerence  In'tween  (U'eds  and  hills  of  exchange.  Di'cd.s 
seldom  if  ever  pass  throu^li  a  variety  of  hands,  and  are  not 
liable  to  the  same  accidents  t«»  wlucli  bills  are,  from  their  nego- 
tiability, exposed.  There  is  tlurefore  gootl  reason  in  the  rule, 
which  rcijuires  that  <leeds  should  Ik*  strictly  kept,  an<l  which 
will  not  sulTer  the  least  alteration  in  tlu-m  ;  but  the  same  rule  i.s 
not  applicable  to  bills.  In  an«ient  times  the  Court  <leeide<l  on 
the  inspection  of  deeds,  for  which  reason  a  profert  was  neces- 
sary, that  they  mii^ht  si'c  whether  any  rasure  or  alteration  had 
taken  place:  but  bills  of  exchange  were  always  within  the  cog- 
nizance of  the  jury.  The  form  of  the  issue  on  a  deed,  also,  is  dif- 
ferent from  that  on  a  bill ;  in  the  one  it  i.s,  that  it  is  not  then,  /.«., 
at  the  time  of  plea  pleade<l,  the  deed  of  the  party ;  11  Co.  27,  a, 
Pil/ofs  Case;  but  the  issue  on  a  bill  is,  that  the  defendant  did 
not  undertake  and  promise.  Here  the  jury  have  expressly 
found  that  the  defendant  did  accept  the  bill,  and  the  promise 
arises  by  implication  of  law  from  the  acceptance.  An  alteration 
in  the  date,  subsequent  to  the  acceptance,  will  not  do  away  the 
implied  promise.  In  Price  v.  Shute^  "a  bill  was  drawn  payable 
the  1st  of  January;  the  person  upon  whom  it  was  drawn  ac- 
cepts the  bill  to  be  paid  the  1st  of  March ;  the  servant  brings 
back  the  bill ;  the  master,  perceiving  the  enlarged  acceptance, 
strikes  out  the  1st  of  IVIarch,  and  puts  in  the  1st  of  January, 
and  then  sends  the  bill  to  be  paid ;  the  acceptor  then  refuses : 
whereupon  the  person  to  whom  the  monies  were  to  be  paid  strikes 
out  the  1st  of  January,  and  puts  in  the  1st  of  March  again.    In 


MASTER    V.    MILLEPw  1145 

an  action  brought  on  this  bill,  the  question  was,  Whether  these 
alterations  did  not  destroy  the  bill  ?  and  ruled  they  did  not."  2 
Molloy,  109.  In  Nieliols  v.  Haywood,  Dyer,  59,  it  was  holden 
in  the  case  of  a  bond,  that  where  the  seal  was  destroyed  by 
accident  before  the  trial,  the  jury  might  find  the  special  matter, 
and  being  after  plea  pleaded,  it  could  not  be  assigned  for  error, 
but  the  plaintiff  recovered.  To  the  same  point  also  is  Cro.  Eliz. 
120,  Michael  v.  S'cochvith.  So  in  the  present  case,  it  was  com- 
petent to  the  jury  to  find  the  special  matter,  and  an  alteration  in 
the  bill,  subsequent  to  the  time  of  the  acceptance,  ought  not  to 
prevent  the  plaintiff  from  recovering.  In  i>r.  LeyfieWs  Case, 
10  Co.  92,  b,  it  is  said,  "  in  great  and  notorious  extremities,  as 
by  casualties  of  fire,  that  all  his  evidences  were  burnt  in  his 
house,  there,  if  that  should  appear  to  the  judges,  they  may,  in 
favour  of  him  Avho  has  so  great  a  loss  by  fire,  suffer  him  upon 
the  general  issue  to  prove  the  deed  in  evidence  to  the  jury  by 
witnesses:"  the  casualty  by  fire  is  only  put  as  an  instance,  for 
the  principle  is  applicable  to  all  cases  of  accident.  Thus  also  in 
Read  v.  Brookman,  3  Term  Rep.  B.  R.  151,  a  deed  was  pleaded 
as  being  lost  by  time  and  accident,  without  a  profert :  and  the 
present  case  is  within  the  reason  and  spirit  of  that  determination. 

Bearcroft,  contra. —  On  principles  of  law  and  sound  policy, 
the  plaintiff  ought  not  to  recover.  The  reason  of  the  rule,  that 
a  material  alteration  shall  vitiate  a  deed,  is  applicable  to  all 
written  instruments,  and  particularly  to  bills  of  exchange, 
which  are  of  universal  use  in  the  transactions  of  mankind. 
And  here  there  was  a  material  alteration  in  the  bill  inasmuch 
as  the  time  of  payment  was  accelerated.  As  to  the  case  of 
Price  V.  Shute,  it  is  but  loosely  stated,  and  that  not  in  any  book 
of  reports ;  and  it  does  not  appear  against  whom  the  action  was 
brought. 

Lord  Chief  Justice  Eyre.  —  I  cannot  bring  myself  to  enter- 
tain any  doubt  on  this  case ;  and  if  the  rest  of  the  court  are  of 
the  same  opinion  it  is  needless  to  put  the  parties  to  the  delay 
and  expense  of  a  second  argument.  When  it  is  admitted  that 
the  alteration  of  a  deed  would  vitiate  it,  the  point  seems  to  me 
to  be  concluded ;  for  by  the  custom  of  merchants  duty  arises  on 
bills  of  exchange  from  the  operation  of  law,  in  the  same  manner 
as  a  duty  is  created  on  a  deed  b}^  the  act  of  the  parties.  With 
respect  to  the  argument  from  the  negotiability  of  bills  of  ex- 
change and  their  passing  through  a  variety  of  hands,  the  infer- 


1  1  \h  MASTKH    V.    MILLKU. 

ence  is  directly  the  reverse  of  tliat  whiclj  was  drawn  hy  the 
counsel  for  the  plaintifY:  tiiere  are  no  witnesses  to  a  hill  «>f  ex- 
change, as  there  are  to  a  deed;  a  hill  is  more  easily  altered 
than  a  deed;  if  therefore  cnuits  of  justice  weie  not  U)  insist  on 
V)ills  heinj^  strictly  and  faithfully  kept,  alterations  in  them 
highly  dangerous  might  take  place,  such  as  the  addition  of  a 
cipher  in  a  hill  for  1(M>/.,  hy  which  the  sum  might  l»e  changed 
to  lOUU/.,  and  the  holder  having  failed  in  attempting  to  rec«»ver 
the  1000/.,  might  afterwards  take  his  chance  of  recovering  the 
100/.,  as  the  bill  originally  stood.  lint  such  a  proceeding  would 
he  intolerahle.  It  was  said  in  the  argument  that  the  defendant 
C(udd  not  dispute  the  finding  of  the  jury,  that  they  found  he 
acce])ti'd  tlic  hill,  and  therefore  that  the  suhstance  of  the  issue 
was  proved  against  him.  Hut  the  meaning  of  the  plea  of  non 
ossiiiii/isif  is,  not  that  he  did  not  accept  the  l»ill,  hut  that  there 
was  no  duty  hinding  on  him  at  the  time  of  pica  pleaded  (n). 
There  are  many  ways  hy  whicii  the  obligation  of  the  acci'ptanco 
might  he  discharged;  for  instance,  hy  payment.  And  it  was 
certainly  competent  to  him  to  show,  that  the  duty  which  arises 
primd  facie  from  the  acceptance  of  a  hill,  wa.s  disi'harged  in  the 
present  case  by  the  bill  itself  being  vitiated  by  the  alteration 
which  was  made. 

Lord  Chief  Baron  Mnnlonnld. —  I  see  no  distinction  as  to  the 
point  in  question  between  deeds  and  bills  of  exchange  :  and  I 
entirely  concur  with  my  Lonl  Chief  .lustice,  in  thinking  there 
would  be  more  dangerous  consiMjuences  follow  from  permitting 
alterations  to  be  made  on  bills  than  on  deeds. 

The  other  Judges  declared  themselves  of  the  same  opinion. 

Jud<rment  allirmed. 


Since  the  decision  of  this  case  it  never  has  boon  donbted  that  [at  common 
law]  a  material  alteration  in  a  bill  or  note  not  satisfactorily  accounted  for 
operates  as  a  satisfaction  thereof,  except  as  wjainst  parties  consenting  to  such 
alteration;  [even  though  made  bj'  a  stranger.  See  Davidson  v.  Cooper,  11  M. 
&  W.  795,  13  M.  &  ^V.  343;  Pattinson  v.  Luckleij,  L.  R.  10  Ex.  330,  44  L..I.  K.\. 
180.  The  question  of  materiality  has  been  held  to  be  one  of  law  and  not  to 
be  judged  of  by  surrounding  circumstances,  }'anre  v.  Loirther,  1  Ex.  D.  176. 
45  L.  J.  Ex.  200.  In  the  case  of  bills  of  excliange  and  promissory  notes  it 
was  by  the  Bill  of  Exchange,  1882,  sect.  64,  enacted  as  follows :  — 

64.  (1)  "  Where  a  bill  or  acceptance  is  materially  altered  without  the  assent 
of  all  parties  liable  on  the  bill,  the  bill  is  avoided  except  as  against  a  party 

(a)  See  Douge.  Ill  and  112,  8vo.    Sullivan  v.  Montague,  and  the  notes  there. 


MASTER    Y.    MILLER.  1147 

who  has  himself  made,  authorised,  or  assented  to  tlie  alteration,  and  subse- 
quent indorsers. 

Provided  that, 

Where  a  bill  has  been  materially  altered,  but  the  alteration  is  not  apparent" 
{Leeds  Bank  v.  Walker,  11  Q.  B.  D.  84,  52  L.  J.  Q.  B.  590),  "  and  the  bill  is  in 
the  hands  of  a  holder  in  due  course,  such  holder  may  avail  himself  of  the 
bill  as  if  it  had  not  been  altered,  and  may  enforce  payment  of  it  according  to 
its  original  tenour. 

(2.)  In  particular  the  following  alterations  are  material,  namely,  any  alter- 
ation of  the  date,  the  sum  payable,  the  time  of  payment,  the  place  of  pay- 
ment, and,  where  a  bill  has  been  accepted  generally,  the  addition  of  a  place 
of  payment  without  the  acceptor's  assent." 

In  Leeds  Bank  v.  Walker,  11  Q.  B.  D.  84,  52  L.  J.  Q.  B.  590,  it  was  held  by 
Deuman,  J.,  that  this  act  is  not  retrospective,  and  that  a  Bank  of  England 
note  does  not  come  within  the  section  cited  above. 

In  Alderson  v.  Langdale,  3  B.  &  Ad.  660,  the  doctrine  [of  Master  v.  3IiUer'\ 
was  carried  still  further,  and  it  was  held  that  such  an  alteration  made  by  the 
plaintiff  operated  as  a  satisfaction  not  only  of  the  bill,  but  of  the  debt  which 
it  was  given  to  secure.  In  Alderson  v.  Langdale,  the  debtor  was  the  drawer 
of  the  bill  altered;  but  in  Atkinson  v.  Havdon,  2  A.  &  E.  628,  it  was  held  that 
where  the  debtor,  being  himself  the  malver  or  acceptor,  could  have  had  no 
remedy  on  the  instrument  against  any  other  party  to  it,  his  liability  to  pay 
the  debt  secured  ther8l)y  would  not  be  extinguished  by  the  alteration.  In 
that  case  the  declaration,  so  far  as  is  material  to  the  point,  was  for  goods 
sold  and  delivered,  and  on  an  account  stated.  Plea,  that  the  defendant 
accepted  a  bill  at  two  months  for  the  debt;  Replication,  that  it  was  not  paid 
when  due ;  Rejoinder,  that  the  plaintiff  had  altered  it  without  the  defendant's 
assent.  Demurrer,  and  judgment  for  the  plaintifi',  the  defendant's  counsel 
admitting  that  the  rejoinder  could  not  be  supported.  It  is  obvious  that  this 
case  ,has  no  bearing  upon  the  eft'ect  of  such  an  alteration  in  an  action  on  the 
bill  itself. 

Altei'ations  in  the  date,  sum,  or  time  for  payment,  or  the  insertion  of  words 
authorising  transfer  or  expressing  the  value  to  be  received  on  some  particular 
account,  adding  the  name  of  a  maker  or  drawer,  or  an  unwarranted  place  for 
payment  [had  been  before  the  passing  of  the  Bills  of  Exchange  Act,  1882, 
held  to  be] ,  material  alterations  within  the  above  rule.  See  Walton  v.  Hast- 
ings, 4  Camp.  223,  1  Stark.  215  ;  Outhwaite  v.  Luntly,  4  Camp.  179 ;  Bowman  v. 
Nicholl,  5  T.  R.  537;  Cardivell  v.  Martin,  9  East,  190;  Kershaio  v.  Cox,  3  Esp. 
246;  Knill  v.  Williams,  10  East,  431;  Clark  v.  Blackstock,  Holt,  N.  P.,  474; 
Tidmarsh  v.  Grover,  1  M.  &  S.  735;  Cowie  v.  Halsall,  4  B.  &  Ad.  197;  R.  v. 
Treble,  2  Taunt.  328  ;  Alderson  v.  Langdale,  3  B.  &  Ad.  660 ;  Taylor  v.  Moseley, 
6  C.  &  P.  278;  Crotty  v.  Hodges,  4  M.  &  Gr.  561,  5  Scott,  N.  E.  221,  S.  C. ; 
Harrison  v.  Cotgreave,  4  C.  B.  562,  where  the  defendant  pleaded  his  infancy 
at  the  time  of  the  alteration  (not  stating  it  to  have  been  made  without  his 
consent),  and  that  he  had  not  ratified  the  contract  as  altered  after  he  came  of 
full  age;  Mason  v.  Bradley,  11  M.  &  W.  590,  where  the  name  of  one  of  the 
makers  of  a  promissory  note  was  cut  off;  [  Warrington  v.  Early,  2  E.  &  B. 
763,  where  the  addition  was  of  the  words  "  interest  at  six  per  cent,  per 
annum,"  in  the  corner  of  a  note  for  the  payment  of  a  sum  "  with  lawful  in- 
terest; "  ]  Burchfield  v.  Moore,  3  E.  &  B.  683,  where  a  place  of  payment  was 
added  to  the  acceptance,  and  the  acceptor  was  held  not  to  be  liable  even  to  a 
bona  fide  holder  for  value  [(see  this  explained  below)  Hirschfeld  v.  Smith,  L. 


Ills  MASTKU    V.    MILLKU. 

Ii.  1  C.  1'.  .'{40;  ;{.'>  I..  .1.  ('.  r.  177,  wluTi-  an  atldltion  was  mncio  of  the  rate  of 
fxclianj;!'  nt  wlilcli  n  1)111  drawn  on  I'lirln,  was  t<>  Im-  palil;  nnil  Himrhmmt  v. 
JliKht,  L.  K.  S  Kx.  171  ;  42  L.  J.  Kx.  ll.l,  wlit-ri-  tin-  ilatt-  of  a  lilll  payable  four 
iniiiillis  aftiT  dat«*  was  altered  from  llu-  1-il  to  the  11th  of  OctolH-r,  and  the 
alteration  was  held  nniterial  notwithstanding;  observatlonH  to  the  e«intnir}', 
whlfh  an-  attributed  to  I'arke,  B.,  In  Parnj  v.  .\iihi>liion,  13  M.  &  W.  778; 
Vdiiif  V.  Lmrthtr,  1  Kx.  1).  17«.  4.'i  L.  J.  Kx.  'im,  where  the  alteration  of  the 
date  of  a  <-he<|Ue  wa.«*  helil  material;  and  Sttffi-tl  v.  Hunk  i>f  Emjhiml,  I)  t^.  B. 
I).  ;■>.■».">,  where  the  alteration  of  the  nund>er  on  a  Bank  of  Knulanil  note  wa.s 
lield  material  by  the  ('.  A.,  overrulini;  the  derision  of  Lord  Colerlilce.  ('.  J. 

In  this  ease  the  Conrt  <lisa|>pro\  ini;  of  i'niilirrU  v.  J'arki-r,  Ir.  \{.  :\  K<|  .ir.», 
17  W.  ]{.  '.'■'»•■».  overruled  the  eonteiitlon  that  the  alteration  to  be  material 
withiti  the  ride  must  be  an  alteration  of  some  part  of  the  contraet  contained 
in  the  altered  instrument,  and  held  that  the  rule  would  apply  even  to  an 
instrument  not  containing  a  eontrart  at  all.] 

When  an  ncri'jttnncf  Is  altered  by  Inserting  a  place  of  payment,  without 
addiiiir  the  w<jnls,  "  there  only,"  or  "  not  elsewhere,"  the  alteration  Is,  In  an 
action  against  the  acceptor,  immaterial  If  made  by  his  consent  [the  Hills  of 
Kx(  hanirc  .Vet,  1H.S2,  s.  11),  sid>-s.  2  ('")],  having  rendere«l  the  Bb»)ve  weirds 
necessary  in  ordi-r  to  a  special  ac«'eptance.  Il'»///#'r  v.  Cuhhtj,  2  C  i  M.  l.M, 
[decided  Upon  st.  1  &  2  (1.  4.  repealed,  but  re-enacte<l  by  the  above  Act], 
But  if  made  without  his  sanction,  it  avoids  the  bill,  belni;  the  unauthorised 
appointment  «)f  an  auent  to  pay  the  bill.  Taylor  v.  Musrleij,  V,  ('.  &  I'.  27H ; 
Marititiish  V.  /laijdnn,  H.  &  M.  a«2 ;  Dt-nhrnww  Wrthrrbtj,  1  M.  &  Hob.  A'A»; 
Ciilnrt  v.  Ihihr,  4  M.  &  \V.  417;  Crnttij  v.  Ifud/jrg,  4  M.  &  («.  5(51  ;  .1  Scott.  N. 
R.  221,  S.  C.  Itun-hjield  v.  Monre,  '.\  E.  &  H.  CM.  ["Such  wonls,  although 
they  do  not  alter  the  direct  liability  of  the  acceptor,  »lo  vary  the  contract 
between  others  who  are  parties  to  the  bill;  therefore  If  interpolated  without 
Ins  consent,  tliey  nuiy  prejudice  the  acceptor;  they  amount  to  a  material 
alteration  of  tlie  l)ill."  per  Campbell,  C.  J.,  in  the  last  case.  .Vnd  see  now  the 
Bills  of  Kxchauije  Act,  1SH2,  s.  04,  sect.  2,  ante. 

In  Ilitnhiirij  v.  Lin-t-tt,  1»;  W.  K.  7'.».'>,  IH  L.  T.  N.  S.  'MC,  the  «lcfcutiant  had 
given  his  acceptance  in  l)lank  to  the  plaintifl".  which  the  latter  filled  up  "  pay- 
able at  14;').  Euston  Koad ;  "  it  was  held  tluit  this  was  etiuivalent  to  a  mate- 
rial alteration,  and  dischar<red  the  acceptor,  at  any  rate  as  against  the 
plaiutirt". 

An  alteralion  made  to  carry  out  the  original  intention  of  the  jiarties  does 
not  vitiate  the  instrument.  Cttrixn  v.  Tattfrsnll,  2  M.  i"i  (J.  H'.tO;  London  and 
Pr-rinriul  Hank  v.  Rnherts,  22  W.  R.  402.] 

If  the  alteration  be  material,  it  makes  no  difl'ercnce  that  it  would  operate, 
if  at  all,  to  the  benefit  of  the  maker.  Uardnrr  v.  ]Valsh  [."j  E.  &  B.  H3].  24  L. 
J.  285,  overruling  Cotton  v.  Simpson,  8  A.  &  E.  13G. 

Even  if  the  alteration  be  made  icith  the  consent  of  all  the  parties  to  the  bill 
or  note;  still,  as  it  thereby  becomes  a  new  contract,  the  old  stamp  will  not 
suffice,  Boicman  v.  XichoU,  5  T.  R.  .537;  [Bathe  v.  Taylor,  1.3  East,  412;]  un- 
less, indeed,  the  alteration  was  merely  to  correct  a  mistake,  and  so  render  the 
instrument  what  it  was  originally  intended  to  have  been.  Kershato  v.  Cox,  3 
Esp.  240;  Jacob  v.  JIart,  G  M.  &  S.  142;  Clark  v.  Blackstock,  Holt,  N.  P.  474; 
Byron  v.  Thomson,  11  A.  &  E.  31 ;  Cariss  v.  Tattcrsall,  3  Scott,  N.  R.257.  2  M. 
&  G.  890,  S.  C,  which  see  as  to  the  evidence  sufficient  to  prove  an  assent  to 
the  alteration ;  Wright  v.  Inshaw,  1  Dowi.  N.  S.  802  ;  [the  intent  of  the  alter- 
ation is  a  question  for  the  jury;  Byles  on  Bills,  14th  Ed.  339.] 


MASTER    V.    MILLER.  1149 

The  addition  of  a  new  contractor  witli  the  assent  of  all  parties  does  not 
hurt,  according  to  Zouch  v.  Clay,  1  Vent.  185,  2  Lev.  35,  S.  C. ;  [or  where  he 
was  originally  intended  to  be  added,  Dodge  v.  Priiigle,  29  L.  J.  Exch.  115;] 
and  according  to  Catton  v.  Simpson,  8  A.  &  E.  136,  3  N.  &  P.  241,  S.  C,  the 
addition  of  a  contracting  party  without  consent  is  merely  inoperative,  but 
according  to  the  later  authority  of  Gardner  v.  Walsh,  siipra,  it  vitiates  the 
instrument. 

The  addition  [however]  of  a  thing  perfectly  immaterial  does  not  affect  the 
liability  of  the  parties,  Catton  v.  Simpson,  8  A.  &  E.  136.  [Where  the  altera- 
tion is  an  immaterial  one,  the  Court  of  Queen's  Bench  declining  to  be  bound 
by  the  second  resolution  in  PigoVs  Case,  11  Rep.  at  fol.  27a,  have  decided 
that  though  made  by  a  party  to  the  instrument  it  does  not  vitiate  the  instru- 
ment. Aldous  V.  Cornu-eU,  L.  R.  3  Q.  B.  573,  37  L.  J.  Q.  B.  201.  That  Avas  an 
action  by  the  payee  against  the  maker  of  a  promissory  note,  and  the  altera- 
tion proved  was  the  addition  of  the  words  "  on  demand,"  which  was  held  to 
be  immaterial. 

See  also  Garrard  v.  Lewis,  10  Q.  B.  D.  30,  decided  before  the  Bills  of 
Exchange  Act,  1882,  where  it  was  held  that  no  alteration  (even  it  be  fraudu- 
lent and  unauthorised)  of  the  marginal  flgure  in  a  bill  vitiates  it  as  a  bill  for 
the  full  amount  inserted  in  the  body  when  the  bill  reaches  the  hand  of  a 
holder  who  is  unaware  that  the  marginal  index  has  been  improperly  altered. 
In  Caldwell  v.  Parker,  3  Ir.  Rep.  Eq.  519,  526,  17  W.  R.  955,  a  deed  had  been 
executed  between  one  Parker  of  the  one  part,  and  was  executed  by  all  four. 
Subsequently  J.  Caldwell  drew  his  pen  through  his  own  and  M.  Caldwell's 
signatures,  the  seals  remaining  untouched.  It  was  admitted  that  the  erasure 
was  made  wilfully,  and  under  the  impression  that  it  might  influence  claims 
to  be  made  dehors  the  deed,  but  no  fraud  was  intended,  and  the  deed  con- 
tained no  grant  or  covenant  by  the  Caldwells,  and  imposed  no  liability  upon 
them.  They  were  simply  covenantees.  It  was  held  that  the  erasure  was 
immaterial,  and  did  not  avoid  the  deed.  But  this  case  was  disapproved  by 
the  C.  A.  Suffell  v.  Bank  of  England,  9  Q.  B.  D.  555,  51  L.  J.  Q.  B.  -101. 

In  Sellin  v.  Price,  L.  R.  2  Ex.  189,  36  L.  J.  Ex.  93,  a  composition  deed  had 
been  registered  under  the  Bankruptcy  Act,  1861,  s.  192,  between  a  debtor,  a 
surety,  and  "  the  several  persons  whose  names  or  firms  are  set  forth  in  the 
schedule  hereto,  hereinafter  styled  creditors."  At  the  time  of  the  registra- 
tion there  was  no  schedule  of  creditors  annexed,  and  it  was  held  that  the 
subsequent  addition  of  a  schedule  was  a  material  alteration  which  vitiated 
the  deed. 

But  in  Wood  v.  Slack,  L.  R.  3  Q.  B.  379,  37  L.  J.  Q.  B.  130,  where  the  deed 
was  made  between  the  debtor  of  the  first  part,  and  "  the  several  other  per- 
sons named  in  the  schedule  thereto  as  creditors,  and  all  other  the  creditors, 
if  any,  of  the  defendant  of  the  second  part,"  and  was  executed  before 
registration  by  a  suflicieut  majority  of  creditors  to  make  it  binding  under  the 
Act,  it  was  decided  that  the  addition  to  the  schedule  subsequently  to  the 
registration  of  the  names  of  two  creditors  was  not  a  material  alteration 
of  the  deed  so  as  to  vitiate  it,  the  deed  when  registered  being  "as  much 
binding  upon  the  two  creditors  before  as  it  was  after  their  names  were 
inserted  in  the  schedule."     See  also  Harris  v.  Tenpany,  Cab.  &  El.  65. 

In  Ex  parte  Yates,  2  De  G.  &  J.  191,  27  L.  J.  Bank.  9,  the  executor  of  the 
payee  of  a  promissory  note  forbore,  at  the  request  of  one  of  the  makers,  to 
press  for  payment  of  it  on  his  procuring  additional  security,  and  accordingly 
another  party  placed  his  name  on  the  note,  not  under  the  signatures  of  the 


11  "jO  MASTKll    V.    MIl.LKK. 

makers,  hut  in  tlic  opposite  roriuT.     Tlio  Lords  Jiistires  lulil  tlu-  addition  to 
bf  not  an  allcnition  Imt  an  indorsoni-.-nt.] 

An  ultoration  nwuii*  witli  tlu'  consent  of  parties  before  a  (till  or  note  htt$ 
issmd  is  of  no  iniportanee,  for,  up  to  tlie  time  of  issue,  It  Is  in  Jteri ;  I)oipne$ 
V.  ltir/i(irdson,  Bayley  on  Hills,  oth  ed.  IIG;  Johnnon  v.  I),  of  MtirUmrowjh, 
2  Stark.  313;  so  wlien  made  by  an  a^ent  of  all  parties.  Slotmtn  v.  Cox, 
T)  Tyrw.  ITf.,  1  C.  M.  &  U.  471,  S.  C.  And  a  bill  or  note  Is  said  to  be  vtaued 
wliiii  it  is  in  the  liands  of  some  party  entitletl  to  make  a  elalni  upon  It. 
Jjonuirs  V.  Hichardaon,  ubi  sii)>rit ;  ('unhnll  v.  .\/itrtin,  'J  Kast,  I'M);  Kinnersliy 
V.  .V(/.s/i,  1  Stark.  3.'>2. 

If  a  l)ill  or  note  exhiliit  tlie  a|)pearance  of  alteration.  It  lies  iipf)n  the 
holder  to  aecount  for  it.  Ilfinnan  v.  IHrkemton,  .">  Bin*;-  l**!!;  Hinhop  v. 
('fiaiitbre,  1  M.  &  W.  llC;  Kni'jht  v.  Clements,  8  A.  &  E.  213;  (  Nf,,r<l 
V.  Lmlij  I'orkir,  2  M.  &  G.  "Joy,  3  Scott,  N.  K.  233,  S.  C.  [See  the  observations 
as  to  this  in  Byles  on  Bills,  14th  Ed.  341.]  Whether  an  interlineation  like  an 
alleratif)n  raises  a  prim!\  facie  case  of  suspicion,  so  that  the  onus  of  explain- 
ing it  is  thrown  upon  the  party  produdni;  the  Instniment,  see  2  Wins. 
Saiind.  2(M)  c.  n.  (h).  It  has  been  laid  down  by  the  Court  of  (Queen's  Bench 
that  altlionj^h  in  the  case  of  a  liill  of  exi'hani;e  there  Is  a  distinct  rule  that  an 
alteration  must  be  <'X|»lained,  yet  that  in  the  case  of  a  ileetl  the  presumption 
is  tiial  the  alteration  was  made  before  exectitlon.  Doe  il.  Tntum  v.  ('(itnmnre, 
U)  Q.  B.  74.-1. 

Cinitni  of  a  will,  l)e(au<e  thai  may  be  altered  by  the  testator,  without 
wroni;,  after  It  Is  executed.  Doe  d.  Shalrross  v.  Palmer,  H!  Q.  B.  747. 
[Arronl.  Christmas  v.  ]yhinijatea,  3  Sw.  &  Tr.  HI  ;  32  L.  J.  Prob.  73,  where  the 
same  principle  was  applied  to  the  case  of  the  mutilation  of  a  will.]  (^uare 
whether  the  distinction  between  an  alteration  and  an  Interlineation  was  much 
considered  in  D<ie  d.  Tatum  v.  Catomnre. 

A  cancellation  f>i/  mistake  does  not  attect  the  liability  of  the  i)arfi»'s  whose 
siijiintures  are  cancelled.  liaprr  v.  liirkhrrk-,  \'t  East,  17;  Wilkiitson  v.  Jnhn- 
ao?i,  2  B.  &  C.  428;  Xovelli  v.  liossi,  2  B.  &  Ad.  7<;.-. ;  Accord.  Wanrirk  v. 
Jinijers,  5  M.  &  G.  3r)2,  fi  Scott,  N.  U.  1,  S.  C,  where  an  unsuccessful  attempt 
was  made  to  tl.x  a  banker  who  had  uiade  such  a  canccllaticm,  with  the  amount 
of  the  bill.  [See  as  to  mistake  annullin:;  the  cancellation  of  a  deed,  Perrott 
V.  Perrott,  14  East,  423.  "  If  the  absence  of  intention  to  cancel  be  clearly 
shown,  tlie  thing  is  not  cancelled."  Bambrrr/er  v.  The  Commercial,  dr.  Co., 
15  C.  B.  693,  per  Maule,  J.] 

Although  for  a  long  time  Pir/ot's  Case,  11  Uep.  2G  a,  and  Master  v.  Miller, 
were  the  authorities  always  referred  to  upon  ((uestions  of  alteration,  and 
although  such  questions  seldom  arose  except  in  actions  upon  deeds,  bills  of 
exchange,  and  promissory  notes,  yet  the  doctrine  of  those  two  cases  has  been 
extended  to  other  Avritten  instruments. 

In  Powell  V.  Divett,  15  East,  2'J,  the  Court  of  Queen's  Bench  applied  it  to 
the  case  of  bought  and  sold  notes,  and  held  that  a  vendor  who,  after  the 
bought  and  sold  notes  had  been  exchanged,  prevailed  on  the  broker,  without 
the  consent  of  the  vendee,  to  add  a  term  to  the  bought  note  for  his  the  ven- 
dor's benefit,  thereby  lost  all  right  against  the  vendee.  The  same  law  was 
acted  upon  in  Mollett  v.  Wackerbarth,  5  C.  B.  181. 

And  in  Davidson  v.  Cooper,  11  M.  &  W.  7S>5,  where  to  a  count  in  assumpsit 
on  a  guaranty,  the  defendant  pleaded  that  after  it  was  given  to  the  plaintiff, 
it  was  altered  in  a  material  particular  by  some  person  to  the  defendant  unknown, 
without  his  consent,  by  affixing  a  seal  so  as  to  make  it  appear  to  be  the  deed 


MASTEK    V.    3IILLER.  1151 

of  the  defendant,  and  upon  a  motion  of  judgment  non  abstante  veredicto,  the 
Court  of  Exchequer  reviewed  and  expounded  the  Taw  upon  tlie  general  subject 
of  alteration,  and  holding  the  case  to  fall  within  the  doctrine  of  Pigot's  Case, 
gave  judgment  for  the  defendant.  And  that  judgment  was  affirmed  by  the 
Court  of  Exchequer  Chamber,  "after  much  doubt,"  13  M.  &.W.  343.  The 
doubt  at  first  entertained  by  the  Court  of  Exchequer  Chamber  may  however 
be  considered  as  fortifying  their  ultimate  decision,  which  was  founded  on  the 
principle,  "  that  a  party  ivho  has  the  custody  of  an  instrument  made  for  his  bene- 
fit, is  bound  to  presen-e  it  in  its  original  state."  "It  is,"  said  Lord  Deuman,  in 
delivering  the  judgment,  "  highly  important  for  preserving  the  purity  of 
legal  instruments,  that  this  principle  should  be  borne  in  mind,  and  the  rule 
adhered  to.  The  party  who  may  suffer  has  no  right  to  complain,  since  there 
cannot  be  any  alteration  except  through  fraud  or  laches  on  his  part." 

\_Davidson  v.  Cooper,  was  acted  upon  in  Croockeicit  v.  Fletcher,  1  H.  &  N. 
893,  in  which  case  the  instrument  vitiated  by  alteration  was  a  charter-party 
(see  also  Fazakerly  v.  McKnight,  6  E.  &  B.  795),  and  in  Pattinson  v.  Luc/dey,  L. 
R.  10  Exch.  330;  44  L.  J.  Ex.  180,  in  which  case  it  was  a  building  contract.] 

An  instrument  which,  by  reason  of  an  alteration,  becomes  invalid  as  the 
foundation  of  an  action,  is  not  hoAvever  thereby  necessarily  avoided  for  all 
purposes.  For  instance,  the  alteration  of  a  deed  of  conveyance,  though  it 
may  deprive  the  covenantee  of  all  right  to  sue  upon  the  covenants  therein  con- 
tained, does  not  affect  the  ownership  of  the  property  conveyed ;  and  the  deed 
may,  it  seems,  still  be  adduced  in  evidence,  to  show  what  was  originally  con- 
veyed thereby.      West  v.  Steward,  14  M.  &  W.  47. 

In  such  cases,  to  use  the  words  of  Lord  Abinger,  in  delivering  the  judgment 
of  the  Court,  in  Davidson  v.  Cooper,  11  M.  &  W.  800,  "  the  deed  is  produced 
merely  as  a  proof  of  some  right  or  title  created  by  or  resulting  from  its  hav- 
ing been  executed"  [See  Green  v.  Attenborough,  Cam.  Scac.  3  H.  &  C.  468; 
where  this  distinction  was  adopted,  and  also  per  Lord  Esher,  M.  R.,  in  Suffell 
V.  Bank  of  England,  9  Q.  B.  D.  at  p.  568.] 

Also,  in  the  Earl  of  Falmouth  v.  Roberts,  9  M.  &  W.  469,  the  rule  as  to  the 
destructive  effect  of  altering  a  written  instrument  was  stated  by  Parke,  B., 
to  apply  where  the  obligation  sought  to  be  enforced  is  by  reason  of  the  instru- 
ment. That  was  an  action  by  landlord  against  tenant  for  mismanagement  of 
a  farm,  and  an  instrument  purporting  to  be  a  written  agreement  for  the  let- 
ting of  the  farm  Avith  stipulations  as  to  the  mode  of  tillage,  though  exhib- 
iting an  erasure  and  interlineation  of  the  term  of  years  not  satisfactorily 
accounted  for,  was  admitted  as  evidence  of  the  terms  upon  which  the  defend- 
ant (who  had  become  tenant  from  year  to  year  under  a  contract,  implied  from 
the  fact  of  occupation,  to  abide  by  all  the  terms  of  the  written  agreement 
applicable  to  a  tenancy  from  year  to  year)  held  the  premises.  In  that  case 
the  instrument  given  in  evidence  does  not  appear  to  have  operated  specifically 
as  an  agreement  upon  the  terms  of  the  existing  tenancy ;  it  did  not  contain 
the  contract  which  the  plaintifl'  sought  to  enforce ;  it  was  only  part  of  the 
evidence  to  prove  that  such  a  contract  existed,  though  not  in  writing;  as 
such  evidence,  only  that  part  of  the  written  instrument  which  stated  the 
mode  of  tillage  was  material,  and  that  part  had  not  been  altered.  It  was  like 
the  printed  paper  in  Lord  Bolton  v.  Tomlin,  5  A.  &  E.  856,  1  N.  &  P.  247,  S. 
C,  with  the  additional  circumstance  that  it  was  identified  by  the  tenant's 
signature. 

In  Gould  V.  Coombs,  1  C.  B.,  543,  also,  a  promissory  note,  assumed  to  have 
been  avoided  as  a  contract  by  adding  the  name  of  a  maker,  was  yet  admitted 


lir)2  MASTEU    V.    MILLKK. 

Ill  (vhlence  together  \vith  iiii  1  •»  l'  "  f<>r  the  aiiioiiiit  s;lven  wlilUt  tlie  note 
was  vtilld,  to  sustain  n  count  upon  tin  uteount  stutctl.  In  Suttnn  v.  I'lmmeM, 
7  H.  &  ('.  41)>,  an  uttereil  promissory  note  was  admitted  In  evidenee  to  hIiovv 
tlie  tt-nns  of  iluposit  of  money  f»)r  wideli  it  had  l)een  given.  In  1  hi-  Aijri- 
rnltiirnl  Iiisiinincf  C'omjKimj  v.  Fitzij>rnlil,  1»!  (^.  H.  4;H',  tlie  deetl  of  st-ttlcment 
of  the  eomi)any  was  admitte<l  in  evidence  to  prove  that  the  defendant  was  a 
shareholder,  though  the  naniex  of  other  shareholders,  who  slgnetl  In-fore  hu 
did,  iia<l  lu-en  eriused  since  Ids  execution  of  It.  In  Ilntrhin*  v.  Srott,  2  M.  & 
\V.  so'.t,  likewise,  an  altered  agreement  was  admitted  in  evidence  for  n  col- 
hlteral  |»urpose;  but  s«ime  of  the  observations  in  tliat  »'«.se  must  be  taken 
sul)je<'l  to  correctl(»n  by  hiuiilson  v.  Cimjifr. 

[In  I'littinAnn  V.  Lurkhij,  \..  W.  10  K.\.  a:lO,  41  L  .1.  Kx.  Iso,  the  plaintifT  had 
done  work  for  the  defendant  after  the  execution  of  a  written  bidldlng  eon- 
tract.  Tliat  instrument  was  after  execution  altered  in  a  material  jiart  by  the 
defendant's  architect.  Hy  the  contract  no  work  was  to  be  paid  for  until 
after  the  architect  had  given  u  certltlcate.  lint  the  plalntltT,  whilst  adndttlng 
that  u  certltlcate  hail  not  been  given  for  the  work  in  respect  of  whU-h  he 
sued,  contended  that  the  alteration  of  the  Instrument  annulled  the  contract 
and  that  lie  might  sue  upon  a  ijintutnin  imriiit.  The  c«»urt,  however,  entered 
the  judgment  for  the  defendant,  holding  that  though  the  defendant  udght 
have  lipen  disentitled  to  sue  upon  the  contract  as  such,  the  Instrument  must 
still  be  looked  at  In  that  action  to  see  what  were  the  terms  of  the  contract. 
See  also  Sttimrl  v.  Astnit,  «  Irish  C.  L.  Hep.  .W>,  Cam.  Scae. ;  AVy/io/./.y  v.  Hull, 
28  L.  .1.  Kxch.  2.'>7;    Citldinll  v.  I'nrkrr,  Ir.  Uep.  :i  K.|.  .'.l'.>,  17  W.  H.  '.•:.:.. 

The  cancellath)n  of  a  deed  of  lease  with  the  mutual  c(>nsent  of  the  lessor 
and  lessee,  does  not  defeat  the  rlglit  of  the  former  to  recover  the  rent  In  an 
action  of  del)t  on  the  demise,  Lnrd  Ward  v.  Lumlri/,  5  II.  &  N.  «7,  and  in  such 
action  tlie  cancelled  instrument  is  admissible  in  evidence  for  the  plaintilf  on 
tlie  issue  joined  on  u  plea  of  non-demisit.  Snmr  v.  Saim-,  lb.  <'..'.t; ;  2'.>  L.  J. 
Kxeli.  :V22.] 

Ill  i>lt;uliiig  an  alteration  the  defendant  [was  bound  before  the  passing  of 
tlie  .ludicatiire  .Vets]  to  show  that  it  was  in  writing,  I/ardfii  v.  Cliftntt,  1  Q. 
B.  r)L'2 ;  tliat  it  was  made  after  his  contract  was  coini»lete  (as,  for  Instance,  in 
the  case  of  the  acceptor  of  a  bill,  by  acceptance^,  LnmjUin  v.  /AtzurKs,  r>  M. 
&  W.  •)•_".);  and,  either  that  It  was  made  without  his  consent,  or  that  it  was 
of  such  a  character  as  to  ri'iuler  a  new  stamp  necessary,  ami  made  uniler  cir- 
cumstances in  which  a  new  stamp  could  not  legally  be  alllxed;  see  Brmlleij  v. 
n^n-dsli'ii,  14  M.  &  W.  873,  3  Dowl.  &  L.  47(;,  S.  (,'.  [and  also.  perha|)s,  that  the 
alteration  was  made  when  the  instrument  was  in  the  plaintiff's  custody, 
though  made  by  a  stranger.  Davidson  v.  Cooprr.  1:$  M.  &  W.  343;  Patd'iifion  v. 
T.nrkhii.  L.  R.  10  Ex.  330,  44  L.  J.  Ex.  180.  As  to  when  a  defence  under  the 
Stamp  Acts  was  available  by  plea,  see  Lnznrua  v.  Coirif,  3  (.}.  B.  4.">;t ;  Mun:  v. 
luiinj,  23  W.  11.  89 ;  and  also  the  last  uamed  case  as  to  the  cancellation  of 
stamps  on  foreign  bills  of  exchange.] 


1.  General  rule. —  The  rule  of  law  in  the  United  States  is, 
that  the  material  alteration  of  a  written  contract,  made  l)v  a 
party  claiming  under  it,  or  by  his  privity,  avoids  it  as  to  him, 
as  against  parties  not  consenting  thereto.     The  courts  of  the 


MASTER    V.    MILLER.  llo3 

several  states  have  differed  widely  in  the  application  of  this 
universally  accepted  principle  to  individual  cases,  and  in  this 
note  an  endeavor  will  be  made  to  classify  the  conflicting  au- 
thorities, with  special  reference  to  the  more  recent  decisions. 

2.  Intent.  —  If  an  alteration  be  immaterial,  the  tendency  of 
the  later  decisions  seems  to  be  that  the  instrument  is  not 
avoided  thereby,  although  there  be  fraudulent  intent ;  Moye  v. 
Herndon,  30  Miss.  110 ;  Robinson  v.  Phcenix  Bank,  25  la.  430 ; 
Fuller  V.  Green,  64  Wis.  159  (1885).  Many  decisions  and 
dicta,  however,  are  to  the  effect  that  a  fraudulent  immaterial 
alteration  vitiates  a  written  contract ;  Adams  v.  Frye,  3  Met. 
103;  Ames  v.  Colburn,  11  Gray  390;  Bliss  v.  Mclntyr,  18 
Yerm.  466;  Keen  v.  Monroe,  75  Va.  424  (1881);  Milbery  v. 
Storer,  75  Me.  69  (1883).  In  CommonAvealth  v.  Emigrant  In- 
dustrial Bank,  98  Mass.  12,  while  admitting  this  general  doc- 
trine, the  court  declined  to  apply  it  to  negotiable  bonds,  in  the 
hands  of  a  land  fide  purchaser  for  value,  which  had  been  pre- 
viously fraudulently  altered  in  an  immaterial  part.  On  the 
other  hand,  the  decisions  are  almost  unanimously  agreed  that 
a  material  alteration,  though  innocently  made,  avoids  the  in- 
strument, the  only  question  being  whether  as  a  matter  of  law 
the  alteration  be  material ;  Taylor  v.  Taylor,  12  Lea  (Tenn.) 
714  (1883).  See,  also,  language  of  Sharswood,  C.  J.,  in  Craig- 
head V.  McLoney,  99  Pa.  St.  211  (1881).  But  see  infra  as  to 
restoration  of  altered  notes. 

3.  Immaterial  alterations  made  by  party  claiming  under  instru- 
ment.—  The  old  doctrine  laid  down  in  Bigot's  case  (11  Rep.  26) 
that  an  immaterial  alteration  avoids  an  instrument,  if  made  by 
a  party  claiming  under  it,  has  never  received  much  favor  in 
this  country  ;  Hatch  v.  Hatch,  9  Mass.  307  ;  Chessman  v.  Whitte- 
more,  23  Pick.  231 ;  NichoUs  v.  Johnson,  10  Conn.  192 ;  Hale  v. 
Russ,  1  Me.  334 ;  Dunn  v.  Clements,  7  Jones  (X.  C.)  L.  58 ; 
Burnham  v.  Ayer,  35  X.  H.  351 ;  Robertson  v.  Hay,  91  Pa.  St. 
242  (1879).  But  in  some  of  the  earlier  cases  the  rigorous  rule 
of  Pigot's  case  was  approved  as  to  immaterial  alterations  in 
deeds ;  Morris's  Lessee  v.  Vanderen,  1  Dall.  64  ;  Smith  v.  Weld, 
2  Penn.  54 ;  Malin  v.  Malin,  1  Wend.  625  ;  Van  Brunt  v.  Van 
Brunt,  3  Edw.  Ch.  14.  See,  also,  dicta  in  Hunt  v.  Adams,  6 
Mass.  519.  Recently  in  England  the  old  rule  has  been  severely 
denounced,  and  the  court  refused  to  apply  it  to  negotiable  paper; 
Aldous  V.  Cornwell,  L.  R.  3  Q.  B.  573  (1868). 


lir.4  MASTKU    V.    MILMCK. 

-1.  Spoliation. —  AiiotluT  (liMtriiii'  iuiiiouiucil  in  Pi<^n»t*s  case, 
tluit  a  inatfiial  altiiatioii,  made  l»y  a  stiaiij^er,  avoids  i\w  in- 
strument, has  never  been  introduced  into  the  jurisprudence  of 
tliis  country  ;  Rees  v.  Overlxiugh,  (3  Cow.  74t> ;  Piei-sol  v.  (Jrimes, 
aO  Ind.  12!>;  Lul)l)crin<T  v.  Koldhrecher,  ±2  Mo.  5'.»G  ;  (iorden  v. 
U()l)ert.son,  4s  Wis.  4'»:i  (1871>) ;  I>''im  r.  Drum,  1:5:5  Ma.s.s. 
rm  (ISHii):  Moore  v.  Ivers,  83  Mo.  2'.i  (1HH;3);  Condict  r. 
Fh.wcr,  ]()•;  111.  lOo  (1H83);  Pry  i-.  Pry,  109  111.  4G0  (1884); 
Cliurcli  V.  Kowle,  142  Mass.  12  (188«;).  And  even  in  Kn<,dand, 
it'  the  spoliation  takes  place  while  the  instrument  is  (uit  ot"  the 
custody  of  tlie  pLiintiff,  it  seems  that  his  rifjhts  are  not  im- 
l)aired  thereby;  2  Taylor's  Evidence,  i^  1S20  (8th  i-ditiort);  Dav- 
idson I'.  Cooper,  11  .M.  *I^  W.  TTS.  The  burden  of  proof  is  upon 
the  holder  to  show  that  thi-  alleiation  was  made  by  a  stranger; 
Waring  ,..  Smytli,  2  Harb.  Ch.  ll'.t;  Lee  r.  Alexanch-r,  '.»  H. 
Mon.  2;');  Eckert  r.  Louis,  S4  Ind.  W  (1.S82).  The  instrument 
must  l)e  del  hired  upon  in  its  original  shape;  I'nion  National 
Hank  /•.  Koberts,  4;")  Wis.  373  (1878). 

Most  of  the  recent  decisions  on  this  branch  of  the  subject 
have  been  witli  reference  to  the  (question  who  is  to  Ik.*  deemed 
a  stranger,  and  there  is  some  conflict  among  the  authorities.  In 
Brooks  V.  Allen,  Cr2  Ind.  401  (1878),  the  court  say  that  unless 
an  agent  is  authorized  by  his  principal  to  make  an  alteration, 
the  instrument  altered  by  him  is  not  avoided.  In  Nickerson  v. 
Sweet,  13')  Mass.  514  (1883),  it  was  decided  that  an  unauthor- 
ized alteration,  made  by  a  general  agent,  without  fraudulent 
intent,  and  of  such  a  nature  that  no  injury  could  result  there- 
from, might  be  reformed  in  equity.  See,  also,  \'an  Brunt  v. 
Eofi',  35  Barb.  501.  In  Hunt  r.  Gray,  35  N.  J.  Law  227  (1871), 
it  was  held  that  an  alteration  made  by  an  agent  intrusted  with 
a  note  for  the  purpose  of  getting  it  discounted,  was  a  mere 
si)oliation.  In  Bigelow  v.  Stil})hen,  35  Verm.  521,  an  agent 
authorized  to  sell  the  })lainlifY"s  goods  and  take  therefor  notes 
payable  to  the  plaintiff,  altered  a  note  so  received  without 
authority,  and  it  was  adjudged  to  be  the  act  of  a  stranger.  To 
like  effect  was  Laugenberger  r.  Kroeger,  48  Cal.  147  (1874). 

But  in  Eckert  v.  Louis,  84  Ind.  99  (1882),  it  was  held  that 
a  material  alteration,  made  by  an  agent  of  the  payee  before 
delivery  to  him,  avoided  the  note.  And  to  like  effect  was  Lunt 
r.  Silver,  5  Mo.  App.  186  (1878).  Here  the  agent  added  his 
own  name  as  maker  before  delivery  to  the  payee,  and  the  note 


MASTER   V.    MILLER.  1155 

was  held  to  be  avoided.  See,  also,  the  language  of  the  court 
in  Marcy  v.  Dunlap,  5  Lans.  365  (1871),  and  in  Drum  v. 
Drum,  133  Mass.  566  (1882).  In  Church  v.  Fowle,  142  Mass. 
82  (1886),  it  was  held  whe-re,  at  the  request  of  both  parties,  a 
third  person  drew  up  a  note,  and  without  the  knowledge  of 
either  appended  his  signature  as  a  witness,  the  note  was  not 
avoided.  As  to  the  effect  of  alterations  of  bonds  by  officials 
while  in  their  custody,  see  Harris  v.  Bradford,  4  Ala.  214 ; 
United  States  v.  Hatch,  1  Paine  (C.  C.)  336. 

In  several  cases  it  has  been  held,  where  a  material  alteration 
was  made  in  a  note  by  a  principal,  after  signing  by  a  surety, 
before  delivery  to  the  payee,  and  without  his  knowledge,  that 
this  did  not  avoid  the  note,  since  the  alteration  was  not  made 
by  a  party  claiming  under  it,  and  since  the  note  had  not  then 
become  operative ;  FuUerton  v.  Sturges,  4  Ohio  St.  529 ;  Bing- 
ham V.  Reddy,  5  Ben.  266  (1871).  See,  also,  Worrall  v.  Gheen, 
39  Penn.  St.  388 ;  Ogle  v.  Graham,  2  Penn.  132.  But  accord- 
ing to  the  great  weight  of  authority  the  note  is  thereby 
avoided ;  Goodman  v.  Eastman,  4  N.  H.  455 ;  Wood  v.  Steele, 
6  Wall.  80 ;  Draper  v.  Wood,  112  Mass.  315 ;  Hert  v.  Oehler, 
80  Ind.  83  (1881);  Jones  v.  Bangs,  40  Ohio  St.  139  (1883). 
See,  however,  Whitmore  v.  Nickerson,  125  Mass.  496  (1878). 
In  a  recent  Minnesota  case  it  was  held  that  a  note  was  not 
avoided  by  the  principal's  securing  another  surety  without  the 
consent  of  the  first  surety,  the  payee  being  ignorant  of  the  facts 
in  the  case ;  Ward  v.  Hackett,  30  Minn.  150  (1883).  See,  also, 
Snyder  v.  Van  Doren,  46  Wis.  602  (1879).  In  Wilmington  & 
Weldon  R.  R.  Co.  v.  Kitchin,  91 N.  C.  39  (1884)  it  was  even  held, 
where  the  name  of  one  surety  on  a  bond  was  erased  by  the  prin- 
cipal, that  a  second  surety  was  not  discharged,  if  the  obligee 
was  ignorant  of  the  erasure. 

5.  Alteration  of  parol  contracts  by  consent  of  parties.  —  All  con- 
tracts not  under  seal  may  be  altered  or  changed  in  their  terms 
by  oral  agreement,  and  alterations  so  made,  if  founded  upon  a 
valuable  consideration,  are  the  foundation  of  a  new  contract 
ingrafted  upon  the  old;  Prouty  v.  Williams,  123  Mass.  297 
(1877)  ;  Boston  v.  Benson,  12  Cush.  61 ;  Pelton  v.  Prescott,  13 
la.  567  (as  to  a  new  consideration). 

A  note  altered  by  consent  upon  a  condition  subsequent 
remains  valid,  though  the  condition  never  be  performed ;  Stod- 
dard  V.  Penniman,  113    Mass.    386.     An    instrument   remains 


W.'A)  MASTKi;     V.    MILLKU. 

valid  against  j)artirs  who  consent  to  an  altcratiDii,  lliongh 
avoided  as  to  those  not  consenting;  \\  aiiiig  r.  W'iliaiiis,  8  l*iek. 
:52:i;  Smith  r.  Wehl,  '2  IV-nn.  .')4  ;  Wills  r.  Wilson,  :',  Oreg.  308 
(1871);  Craighead  i:  McLoney,  91)  Pa.  St.  Jll  ( 188lj.  See, 
also,  Myers  v.  Nell,  84  Penn.  St.  309  (1877).  If  one  maker 
voluntarily  pays  an  altered  note,  he  cannot  recover  of  a  nt)n- 
asst'nting  maker;  Davis  v.  Hauer,  41  Ohio  St.  2")7  (1884). 
The  [)laintiff  is  liable  for  costs  to  parties  not  consenting  to 
the  alteration,  tlnni^li  he  recover  judgniciit  against  those  who 
ha\e  consented;  lironghton  v.  Fuller,  9  N'eiin.  373;  Wills  r. 
Wilson,  3  Oreg.  308.  Consent  to  an  alteration  may  he  impliecl, 
both  from  the  acts  of  the  party  and  fiinn  a  custom  ;  Bowers  r. 
Jewell,  2  X.  n.543;  Clute  r.  Small,  17  Wnid.  2:5S  ;  Woodworth 
/'.  i'.aidc  of  America,  19  Johns.  391.  In  Taihlikin  r.  Cantrell,  till 
N.  ^'.  i)'M  (1S77),  it  was  held  that  the  payee  of  a  note,  given 
by  a  nuuried  woman,  had  no  im[»lied  aiithority  to  a<ld  words 
which  would  bind  her  separate  estate,  but  that  such  an  author- 
ity might  l)c  implied,  if  at  the  time  of  signing  the  not^,  slie 
ex})ressed  the  desire  that  the  note  might  be  made  legal  and 
binding.     See,  also,  Reeves  r.  Picrson,  23  Hun  18")  (18H0). 

An  vuiauthorized  alteration  may  be  ratitied  by  subsequent 
acts  of  the  i)arty  to  be  chargi'd.  Thus  in  Prouty  '•.  Wilson, 
cited  supra,  it  was  decided,  where  a  note  was  altered  by  a 
})ayee  by  the  addition  of  the  words  ''at  eight  percent.,"  with 
the  consent  of  the  maker,  in  consideration  of  forbearance  to 
sue,  that  evidence  of  the  payment  of  the  interest  at  eight  per 
cent,  by  a  surety,  would  warrant  a  jury  in  tinding  that  he  had 
ratified  the  alteration.  In  a  very  recent  Illinois  case,  Canon  v. 
(rrigsby,  llO  111.  151  (188()),  the  court  held,  where  a  joint 
note  was  given  for  the  purchase  of  goods,  and  one  of  the 
makers,  without  the  consent  of  the  other,  altered  it  in  a  mate- 
rial [)art,  at  the  request  of  the  payee,  that  a  failure  to  return 
the  goods,  after  knowledge  of  the  alteration,  within  a  reasonable 
time,  would  constitute  a  ratification  on  the  part  of  the  other 
maker.  See,  also,  Grimsted  v.  Briggs,  4  la.  557 ;  King  v.  Hunt,  13 
Mo.  97  ;  Humphreys  v.  duillow,  13  N.  H.  385  ;  Gardiner  v.  Har- 
back,  21  111.  129  ;  State  Bank  v.  Pvising,  4  Ilun  793.  A  renewal 
note  given  for  one  that  had  been  altered  would  not  constitute 
a  ratification,  unless  given  with  knowledge  of  the  fact ;  Fraker 
V.  Cullum,  21  Kans.  555  (1879).  Whether  the  alteration  was 
made  by  consent,  or  was  subsequently  ratified,  is  a  question  of 


MASTER   V.    MILLER.  1157 

fact  for  the  jury,  and  the  burden  of  proof  is  on  the  plaintiff; 
Stahl  V.  Berger,  10  S.  &  R.  170 ;  Barrington  v.  Bank  of  Wash- 
ington, 14  S.  &  R.  405;  Overton  v.  Mathews,  35  Ark.  147 
(1879). 

6.  Filling  up  blanks  in  specialties.  —  In  Massachusetts  and  a 
few  other  states  the  hxw  is  that  material  blanks  in  an  instrument 
under  seal,  cannot  be  filled  up,  after  signing  and  sealing,  by  an 
agent  acting  under  a  parol  authority,  except  in  the  presence  of 
the  grantor  or  obligor,  without  a  redelivery ;  Burns  v.  L3^nde,  6 
Allen  305 ;  Basford  v.  Pearson,  9  Allen  887 ;  Skinner  v.  Brigham, 
126  Mass.  132  (1879)  ;  Upton  v.  Archer,  41  Cal.  85  ;  Preston 
r.  Hull,  23  Graft.  605  (1873);  Arguello  v.  Bours,  67  Cal.  447 
(1885)  ;  Adamson  v.  Hartman,  40  Ark.  58  (1882) ;  Yiser  v. 
Rice,  33  Tex.  139  (1870).  See,  also,  State  v.  Boring,  15  Ohio 
507  ;  Evarts  v.  Steger,  6  Oreg.  55  ;  Davenport  v.  Sleight,  2 
Dev.  &  B.  381 ;  Bragg  v.  Fessenden,  11  HI.  544 ;  Cummins  v. 
Cassilly,  5  B.  jNIon.  74 ;  Williams  v.  Crutcher,  5  How,  (Miss.) 
71;  Lockwood  v.  Bassett,  49  Mich.  546  (1883).  A  deed  of 
conveyance  is  operative  as  to  all  parties  who  have  properly  exe- 
cuted it,  though  invalid  as  to  others ;  Furnass  v.  Durgin,  119 
Mass.  501  (1876.)  In  two  very  recent  Massachusetts  cases, 
the  doctrine  of  Burns  v.  Lynde  has  been  modified,  where  the 
grantee  or  obligee  is  ignorant  of  the  defective  filling  up  of  the 
blanks;  Phelps  v.  Sullivan,  140  Mass.  36  (1885);  White  v. 
Duggan,  id.  18.  The  former  case  was  in  regard  to  the  assign- 
ment of  a  mortgage.  "  When  a  grantor  signs  and  seals  a  deed, 
leaving  unfilled  blanks,  and  gives  it  to  an  agent  with  authority 
to  fill  the  blanks  and  deliver  it,  if  the  agent  fills  the  blanks  as 
authorized,  and  delivers  it  to  an  innocent  grantee  without 
knowledge,  we  think  the  grantee  is  estopped  to  deny  that  the 
deed  as  delivered  was  his  deed."  Morton,  C.  J.,  in  Phelps  v. 
Sullivan.  Pence  v.  Arbuckle,  22  Minn.  417  (1876)  accord; 
Preston  v.  Hull,  23  Graft.  605,  semhle,  contra.  White  v.  Duggan 
goes  much  farther,  and  decides  that  where  the  penal  sum  of  a 
probate  bond  is  filled  in  by  the  principal  in  a  greater  amount 
than  the  surety,  who  executed  the  bond  in  blank,  has  author- 
ized, the  surety  is  estopped,  where  the  obligee  is  ignorant  of  the 
fact,  to  deny  not  only  the  validity  of  the  execution  of  the  bond, 
but  also  the  authority  of  the  agent.  The  language  of  the  court, 
however,  is  very  guarded,  and  except  in  the  case  of  official 
bonds,  it  seems  that  they  would  hardly  carry  the  doctrine  of 


1158  MASTER    V.    MILLKK. 

estoppel  in  pais  so  far.  In  Phelps  i*.  Sullivan  this  point  is  ex- 
pressly left  undeeided.  Hut  in  Owen  v.  Perry,  2o  la.  412,  and 
Field  V.  Stagg,  52  Mo.  534  (1873),  it  was  decided  that  a  grantor 
who  executed  a  deed  of  conveyance  containing  material  blanks, 
was  estopj)ed  as  to  an  innocent  grantee,  where  the  agent  had 
deviated  from  liis  authority  in  filling  up  the  Ijlanks.  See,  how- 
ever, Hammerslough  v.  Cheatham,  84  Mo.  1^)  (18S4). 

In  the  other  states  the  strict  technical  rule  is  repudiated, 
and  the  law  is  that  an  agent  under  a  parol  authority  may,  after 
execution  by  the  principal,  till  up  material  blanks  in  a  deed ; 
nuncan  v.  Hodges,  4  McC'ord  (S.  C)  137  ;  Wooly  v.  Constant,  4 
Johns.  54;  Kerwin's  case,  8  Cow.  118;  Wily  /'.  Mooie,  17  S. 
&  R.  438;  White  v.  Verm.  &  Mass.  Railroad,  21  IIow.  575; 
South  Berwick  f.  Huntress,  53  Me.  80;  Van  Etta  ik  Evenson, 
28  Wis.  33  (1871);  Swarz  v.  Ballon,  47  Iowa  188  (1877); 
Garland  v.  Wills,  15  Neb.  298  (1883)  ;  Allen  v.  Withrow,  110 
U.  S.  119  (1884.) 

Many  courts,  however,  have  been  inclined  to  narrow  the 
application  of  this  doctrine  as  much  as  jiossiltle.  In  Allen 
V.  W'ilhiow,  supra,  Mr.  Justice  Field,  while  recognizing  the 
general  priniiple,  says:  "One  condition  essential  to  make  a 
deed  thus  executed  in  blank  operate  as  a  conveyance  of  the 
property  described  in  it,  is  that  the  blank  be  tilled  before,  or 
at  the  time  of  the  delivery  of  the  deed  to  the  grantee  named." 
Chauncey  v.  Arnold,  24  N.  Y.  330  ;  Whittaker  v.  Miller,  83  111. 
381  (1876),  accord.  In  the  former  case,  liowever,  two  of  the 
judges  thought  that  a  mortgagee,  if  authorized  by  a  previous 
parol  authority,  might  fill  up  a  material  blank  in  a  mortgage, 
even  after  delivery,  and  such  was  the  decision  in  Vleit  v.  Camp, 
13  Wis.  198,  in  reference  to  a  warrant  of  attorney.  See,  also, 
Devin  v.  Himer,  29  Iowa  297  (1870.) 

In  Simms  v.  Hervey,  19  Iowa  273,  Dillon,  C.  J.,  thought  that 
this  doctrine  should  be  confined  to  bonds,  but  this  distinction  is 
not  borne  out  by  the  authorities.  In  this  case  it  was  decided, 
however,  that  where  none  of  the  blanks  in  a  printed  form  of  a 
deed  of  conveyance  are  filled  up  before  execution,  the  instru- 
ment does  not  become  operative  by  the  subsequent  filling  up 
of  the  blanks  by  an  agent  under  a  parol  authority  ;  and  it  is 
believed  that  it  has  never  been  decided  that  such  a  deed  of 
conveyance  woidd  be  operative.  It  seems,  however,  diflicult 
on  principle  to  distinguish  between  filling  up  all  the  blanks  in 


MASTER   V.    MILLER.  1159 

a  printed  form  and  the  filling  up  of  one  material  blank.  In 
most  of  the  cases  in  regard  to  deeds  of  conveyance,  the  blank 
has  been  for  the  name  of  the  grantee  ;  and  it  is  held  that  this 
blank  may  be  filled  up  by  an  agent  under  a  parol  authority 
with  the  name  of  any  purchaser  he  may  be  able  to  secure.  In 
Schintz  V.  McManamy,  33  Wis.  299  (1873),  it  was  held  that  the 
deed  would  be  invalid,  when,  the  agent  was  authorized  to  fill 
up  the  blank  with  the  name  of  a  specified  grantee,  but  wrote 
in  the  name  of  a  different  grantee.  But  see  cases  cited  supra 
as  to  estoppel.  In  some  of  the  states  it  has  been  decided  that 
an  implied  authority  to  fill  up  blanks  is  sufficient;  South 
Berwick  v.  Huntress,  supra ;  Drury  v.  Foster,  2  Wall.  24 ; 
Clark  V.  Allen,  34  Iowa  190.  But  see  Chauncey  v.  Arnold, 
supra;  United  States  v.  Nelson,  2  Brock.  (C.  C.)  64;  Smith  v. 
Fellows,  9  Jones  &  Sp.  (N.  Y.)  36  (1876),  contra. 

7.  Alteration  of  contracts  under  seal  by  consent  of  parties.  — 
In  Speake  v.  United  States,  9  Cranch  28,  it  was  decided  that 
an  official  bond,  altered  in  a  material  part  by  the  obligee  after 
delivery  to  him,  with  the  oral  consent  of  the  obligor,  was  bind- 
ing in  its  altered  form,  Livingston  J.,  dissenting.  See,  also, 
Barrington  v.  Bank  of  Washington,  14  S.  &  R.  405 ;  Camden 
Bank  v.  Hall,  2  Green  (N.  J.)  583.  In  Sans  v.  The  People,* 
8  111.  327,  it  was  held  that  a  previous  assent  was  necessary  to 
make  the  bond  binding  in  its  altered  form.  In  Drury  v.  Foster, 
2  Wall.  24,  Nelson,  J.,  says :  "  Although  it  was  at  one  time 
doubted  whether  a  parol  authority  was  adequate  to  authorize 
an  alteration  or  addition  to  a  sealed  instrument,  the  better 
opinion  at  this  date  is  that  the  power  is  sufficient."  In  Howe 
V.  Peabody,  2  Gray  556,  a  probate  bond  altered  by  parol 
authority  after  delivery,  was  adjudged  binding  in  its  new  form, 
on  the  authority  of  Speake  v.  United  States.  In  this  case,  how- 
ever, the  evidence  showed  a  redeliver3^  See,  also,  opinion  of 
Parsons,  C.  J.,  in  Smith  v.  Crooker,  5  Mass.  538.  And  this 
yeems  to  have  been  accepted  as  law  in  respect  to  alterations  in 
bonds,  in  all  the  states  where  the  question  has  arisen. 

But  the  doctrine  that  contracts  under  seal  ma}^  be  altered  or 
changed  after  they  have  become  operative  by  delivery,  by  the 
parol  authority  of  the  obligor,  witliout  a  redelivery  and  in  his 
absence,  has  never  been  extended  to  deeds  of  conveyance,  and 
the  statutes  of  the  several  states  in  regard  to  the  formalities 
necessary  for  the  transfer  of  land,  would  probably  be  considered 


11»;0  MASTKK    V      MILl.Ki:. 

illi  iii>ii[M  r;il)l('  (ilistacic.  1  inis  m  Collins  V.  Cnllilis,  .il  Miss. 
JJll,  it  Wiis  liild,  \vluTf  :i  tlet'il  «»f  trust  ^'ivfii  l»y  way  «»f  in«»it^iij^o 
was  altiTtMl  after  delivery  ami  reconlinjj,  so  as  t<»  cover  u  new 
loan,  that  the  altt-ration  was  int»m'rative  withtuit  a  redelivery, 
tilthoii^di  the  ehan;^'e  was  entered  ujmhi  the  rerord.  Hut  in  lias- 
sett  V.  liiissett,  :')%)  Me.  1-7,  an  unreeorded  de»'d  of  an  undivi<led 
half  of  a  piece  of  land,  was  htdd  to  convey  the  whole  estate, 
when  the  j^rantor,  h>Mj^  after  the  fust  <lelivery,  struck  <»ut  tiio 
words  "one  undivided  half  of,"  and  redelivered  the  iuKtrunient. 
See  also  I'rettynian  r.  (ioodrich, 'J^J  111.  '.V.Mi ;  (ary  i:  <)'IIara, 
Howe  (Irish)  f)!  ;  Keiley  v.  Ahearne,  Batty  (Irish)  IH  (n.). 
Even  in  the  case  of  Ixuids  it  is  hard  to  understand  how  on 
common  law  principles  they  <'an  1m-  chani^'ed  or  altered,  without 
the  same  formalitii's  which  wen-  necessary  to  their  incepti<»n. 
'•  After  piifcctinj,'  a  d«'ed  in  one  form,  no  material  alteration 
should  he  set  up,  unaccompanietl  hy  a  new  delivery,  ami  a  note 
or  memorandum  lhere<»f.  .  .  .  'Ilu'  terms  in  which  the  deed 
is  orij^inally  executed  shouhl  alone  he  hindin^  until  alterations 
are  introduced  into  it  hy  the  same  formalities."  Livinj^ton,  .1., 
ui  dissentinj^  opinion,  mipra.  The  ca.se  of  Hudson  r.  Kevett,  T) 
Binj^.  8t58,  often  cited  in  support  of  the  doctrine  of  Speake  v. 
■Unite<l  States,  had  reference  to  the  lillin^'  up  of  material  hlank.s 
in  a  hoiid  after  c\c<MitioM,  and  as  the  ohlitfor  was  present  wlu-n 
the  hlanks  were  tille(l  up,  tiiere  was  evi<lence  of  a  reclelivcry. 
Some  of  the  dicta  of  Uest,  ('.  J.,  however,  went  miuh  farther 
than  the  di-cision  rcipiircd,  and  are  dillicult  to  reconcile  with 
the  reasonincf  (»f  Baron  I'arke,  in  Ilihhlewhite  r.  M'Moiine,  G 
M.  &  W.  -JOO,  which  linally  established  in  Knj^dand  the  rule 
that  material  blanks  in  specialties  could  not  be  filled  up  by 
parol  authority;  and  in  this  country  it  does  not  seem  probable 
that  those  courts  at  least  which  liave  adopted  the  doctrine  of 
this  latter  case,  would  be  inclined  to  hold  that  specialties  can 
be  clianged  or  altered  in  their  terms  by  parol  authority,  with- 
out a  redelivery. 

8.  Effect  of  alteration.  («)  As  to  deeds  of  conveyance.  —  It  is 
well  settled  both  in  England  and  in  this  country,  that  if  a  deed 
of  conveyance  is  materially  altered  by  a  party  claiming  under 
it,  its  past  operation  is  not  affected,  and  titles  vested  by  it  are 
not  disturbed ;  Lewis  v.  Payn,  8  Cow.  71 ;  Chessman  v.  Whit- 
temore,  23  Pick.  231 ;  Ilerrick  v.  Malm.  22  Wend.  388 ;  AVal- 
lace  V.  Armstead,  41   Penn.   St.  492 ;    Woods  v.  Hilderbrand, 


MASTER   V.    MILLER.  1161 

46  Mo.  284 ;  Wlieeler  v.  Single,  62  Wis.  380  (1885).  See,  also, 
Burnett  v.  McCluey,  78  Mo.  676  (1883).  In  Williams  v.  Van- 
Tuyle,  2  Ohio  St.  336,  it  was  held,  where  a  bond  given  by  a 
trustee  by  way  of  a  declaration  of  trust,  was  altered  by  the 
cestui  que  trusty  the  equitable  estate  was  not  divested  thereby. 
The  altered  deed  may  be  introduced  in  evidence  to  show  the 
premises  conveyed  by  it ;  Hatch  v.  Hatch,  9  Mass.  307 ;  Bur- 
nett V.  McCluey,  cited  supi-a. 

In  those  states  where  a  mortgage  is  considered  an  absolute 
conveyance  of  the  title  upon  a  condition  subsequent  no  altera- 
tion will  defeat  a  suit  for  foreclosure ;  Kendall  v.  Kendall,  12 
Allen  92.  But  in  those  states  where  a  mortgage  is  treated  as  a 
mere  chose  in  action  or  incident  to  the  note,  any  material  altera- 
tion of  the  mortgage  or  of  the  mortgage  note,  will  be  a  good 
defence  to  a  foreclosure  suit ;  and  the  assignee  of  the  mortgagee 
is  in  no  better  position  ;  Waring  v.  Smyth,  2  Barb.  Ch.  119 ; 
Marcy  v.  Dunlap,  5  Lans.  365  (1872) ;  Mersman  v.  Werges, 
1  McCrary  (C.  C.)  528  (1880)  ;  Toomer  v.  Rutland,  57  Ala. 
379 ;  Bowman  v.  Mitchell,  79  Ind.  84  (1881)  ;  Tate  v.  Fletcher, 
77  Ind.  102  (1881)  ;  Pereau  v.  Frederick,  17  Neb.  117  (1885) ; 
Johnson  v.  Moor,  33  Kan.  90  (1885)  ;  Osborne  v.  Andrews,  S.  C. 
Kan.  Oct.  8,  1887.  But  it  has  been  decided  by  several  courts 
that  a  mortgage  may  be  foreclosed,  when  the  note  has  been 
altered  without  fraudulent  intent ;  Vogle  v.  Ripper,  34  111.  100 ; 
Clough  V.  Seay,  49  Iowa  111  (1878).  Bowman  v.  Mitchell, 
cited  supra,  contra.  And  in  Plyler  v.  Elliott,  19  S.  C.  257 
(1882),  it  was  held  that  the  mortgage  might  be  enforced, 
although  the  note  had  been  fraudulently  altered.  When  a 
lessee  for  a  term  of  years  materially  alters  his  lease,  it  has  been 
held  that  the  lease  is  avoided,  and  that  the  lessor  may  enter  at 
once ;  Bliss  v.  Mclntyre,  18  Verm.  466.  See  also  Burguin  v. 
Bishop,  91  Pa.  St.  336  (1879). 

(5)  Right  to  sue  on  original  consideration.  —  When  negotiable 
paper,  which  has  been  altered  by  a  partj^  claiming  under  it,  is 
itself  the  sole  ground  of  action,  not  having  been  given  in  satis- 
faction of  a  precedent  debt  or  claim,  it  seems  clear  on  principle 
that  on  a  material  alteration  of  the  paper,  all  remedy  whatso- 
ever is  lost.  But  it  is  very  generally  held,  where  there  is  a 
cause  of  action  independent  of  the  note,  which  is  only  tempora- 
rily merged  thereby,  that  this  is  not  forfeited,  if  the  alteration 
in  the  negotiable  instrument  was  made  without  fraudulent  in- 


1\&2  MASTKlt    V,    MII.I.KK. 

tent;  ('lute  v.  Small.  17  Weiul.  242;  Booth  v.  Powers,  56  N.  V. 
22  (1S74);  Monisou  v.  Welty,  18  Md.  !♦;'.»;  Wiiiren  r.  I.ayton, 
3  IliUT.  404;  State  Saviiijrs  iiaiik  v.  ShatTer,  'J  Nel..  1  (l«Tl«); 
Sullivan  v.  RiuUlisill,  G3  Iowa  lo8  (1883)  ;  Wallace  v.  Wallace, 
8  111.  AiT[i.  G9  (1880);  Matteson  v.  Ellsworth,  33  Wis.  488 
(1873);  Meyer  v.  Iluneke,  .'>,')  X.  Y.  41 '»  (1«74).  But  the  .sur- 
render of  the  altered  instrument  is  a  condition  precedent  to  an 
a('tinn  on  the  original  consideration,  and  the  note  canncjt  itself 
he  put  in  evidence  in  such  an  action.  See  cases  citeil  Kiif>ru. 
The  hurden  of  proof  is  uj)on  the  holder  to  show  that  the  !ilt«Ma- 
tion  was  innocently  made;  Kohinson  i'.  Reed,  4t>  Iowa  219 
(1S77);  Black  v.  Bowman,  15  III.  Ap[).  IT.G  (1884).  But  see 
Vogle  V.  Kipper,  34  111.  1<)0.  In  Morrison  v.  Iliggins,  53  Iowa 
7G,  it  was  held  that  an  action  would  lie  for  goods  s(jld  and 
delivered,  when  a  note  given  for  tiie  price  hy  the  huyer  had 
been  innocently  altered.  The  only  cause  of  action  originally 
was  upon  the  note,  ami  it  is  hard  to  understand  how  even  an 
innocent  alteration  can  confer  a  new  right ;  and  this  case  is 
op{)oscd  to  the  great  weight  of  authority.  iSnt  see  \'ogh'  ?». 
Ripper,  supra.  In  those  states  where  it  is  held  that  negotiahle 
paper  given  on  account  of  a  precedent  claim,  is  prcsum[)tively 
a  satisfaction  of  that  claim,  it  would  seem  that  this  presumption 
must  he  rebutted,  before  the  original  consideration  can  be  sued 
upon ;  and  it  is  believed  that  in  Massachusetts  and  the  other 
states  where  the  above  doctrine  is  law,  it  has  never  l)een  ex- 
pressly decided  that  the  original  consideration  can  be  resorted 
to  in  any  ease.  In  fact  there  are  some  strong  dicta  to  the  con- 
trary ;  Martendale  v.  FoUet,  1  N.  H.  99 ;  Smith  v.  Mace,  44 
N.  H.  553;  Bigelow  v.  Stili)hen,  35  Verm.  525;  White  r.  Ilass, 
32  Ala.  430.     See,  also,  Whedock  v.  Freeman,  13  Pick.  1(55. 

(c)  Right  of  holder  to  restore  note  to  its  origiual  form.  —  In 
Nevins  v.  Le  (hand,  15  Mass.  43G,  where  a  special  indorsement 
was  innocently  erased  in  order  that  the  indorsee  might  transfer 
the  note  by  delivery  without  indorsing  it,  the  court  allowed  the 
instrument  to  be  restored  to  its  original  form,  and  held  that  a 
suit  might  be  maintained  upon  the  reformed  instrument  against 
the  maker.  "  Justice  requires  and  the  law  allows  it  to  be 
done."  Parsons,  C.  J.  In  Horst  v.  Wagner,  43  Iowa  373 
(1876),  it  was  held  where  a  payee,  ignorant  of  the  proper 
method  of  transferring  the  instrument,  substituted  for  his  own 
name  the    name    of   the  transferee,  and   subsequently  before 


MASTER    V.    MILLER.  1163 

delivery  restored  it  to  its  original  form  and  then  indorsed  it, 
that  the  indorsee  could  maintain  an  action  upon  it  against  the 
maker.  These  decisions  may,  perhaps,  be  sustained  on  the 
ground  that  the  alteration  was  with  reference  to  the  transfer 
of  the  title,  and  in  no  wise  affected  the  rights  of  the  maker. 
But  see  iyifra  as  to  material  alterations  affecting  the  operation 
of  negotiable  paper.  In  Whitmore  v.  Nickerson,  125  Mass.  496 
(1878),  where  a  maker  made  a  material  alteration  in  a  note 
indorsed  for  his  accommodation,  but  restored  it  to  its  original 
form  before  delivery  to  the  payee,  it  was  held  that  the  alteration 
did  not  affect  the  liability  of  the  indorser,  since  when  the 
note  first  became  operative  it  was  in  the  same  state  as  when 
indorsed.  See,  also,  Nickerson  v.  Sweet,  135  Mass.  514  (1883), 
which  held  that  a  note  materially  altered  by  an  unauthorized 
agent  might  be  reformed  in  equity. 

Kounz  V.  Kennedy,  63  Penn.  St.  187,  and  Shepard  v.  Whet- 
stone, 51  Iowa  457  (1879),  go  much  further  than  the  cases 
above  cited,  and  hold  that  where  the  words  "with  interest" 
were  added  to  the  face  of  the  note  by  a  holder  without  fraudu- 
lent intent,  an  action  may  be  maintained  thereon  on  its  restora- 
tion to  its  original  shape.  Sharswood,  J.,  dissented  from  the 
decision  in  Kounz  v.  Kennedy,  and  it  has  been  criticised  in 
several  later  decisions  of  the  same  court.  But  see  Lynch  v. 
Hicks,  S.  C.  Ga.  Oct.  15th,  1887. 

9.  Materiality  of  alteration.  —  An  alteration  which  changes 
the  terms  of  a  written  contract  so  as  to  vary  its  legal  effect 
and  operation  is  material ;  and  the  instrument  is  none  the  less 
avoided  because  the  effect  of  the  alteration  is  beneficial  to  the 
party  to  be  charged.  The  destruction  of  the  identity  of  the 
contract  in  its  legal  effect  vitiates  the  instrument.  See  Schwarz 
V.  Oppold,  74  N.  Y.  307  (1878);  Osgood  v.  Stevenson,  143 
Mass.  399  (1886),  which  was  a  case  of  the  material  alteration 
of  a  written  contract  for  the  purchase  of  a  book. 

(a)  Material  alterations.  —  (1)  Date  and  time.  —  The  date  and 
time  of  performance  of  a  written  contract  are  essential  parts  of 
it ;  hence  any  alteration  in  this  respect  avoids  the  instrument ; 
Master  v.  Miller,  principal  case ;  Wheelock  v.  Freeman,  13 
Pick.  165  ;  Miller  v.  Gilleland,  19  Penn.  St.  119  ;  Lisle  v.  Rogers, 
18  B.  Mon.  528;  Britton  u.  Dierker,  46  Mo.  592;  Brown  v. 
Straw,  6  Neb.  536  (1876);  Taylor  v.  Taylor,  12  Lea  (Tenn.) 
714  (1883).     See,  also,  Lemay  v,  Johnson,  35  Ark.  225  (1879). 


1104  MASTKi:    V.    MILLKIl. 

Ami  tin-  ;ilu  Tiition  is  fatal  rVfii  tli(Mii,'li  tlu-  timr  of  lu'iformaut'e 
be  exti'M(li<l  tla*n.'iiy  ;  Davis  r.  .Kiiiiy,  I  Mt-t.  '221;  \Vtii»«l  v. 
Steele,  <!  Wall.  SO;  W'vmaii  v.  Yetmiaiis,  «1  III.  408  (lH77); 
Rogers  v.  Vi.sl)ur^'h,  «7  X.  V.  2'2X  (1881).  An  altenilitm  in 
tlie  ilate  of  ii  elieek  avoiils  it ;  N'anee  r.  Lowlher,  1  Kx.  1). 
17t>  (1870);  C'niwfonl  v.  West  Side  Hank,  lOO  N.  V.  50 
(1885).  So  an  alteration  in  the  date  of  a  contraet  for  the  sulo 
of  ^oocls  was  iield  material  in  (ietty  t'.  Shearer,  -0  I*ein>.  St.  12. 
In  Stephen  r.  Cirahain,  7  S,  A:  K.  505,  it  w;us  ileeide<l  where  the 
date  of  a  note  was  altere<l  to  tin-  day  lK?fore,  the  note  was 
avoidi'»l,  althoni,d»  the  note  would  otherwise  have  fallen  due  <tn 
Sunilay,  so  that  the  elTt-ct  would  have  lu'i-n  the  siiine.  lUit  see 
Ames  V.  ('oUhiim,  11  (iray  ;'.'.•<».  (i  was  drcidi  d  that  an  altera- 
tion of  tht;  date  of  an  indorsi-nient  wius  immaterial  in  (irillith  r. 
Cox,  1  I'l-nn.  lilO;  hut  i^imrr.  Si-c,  also,  on  the  suhjrrt  of  altera- 
tions in  the  «late  of  a  eontract,  Hamilton  r.  \\'oo<l,  7"  Ind.  30G 
(1880),  and  (iill  r.  Hopkins,  V.)  III.  App.  74  (18S«;). 

(2)  Place  of  performauce.  —  Adding,',  erasing',  or  ehanj^in^'  the 
place  of  payment,  is  a  material  alteration  of  a  hill  or  note;  and 
the  law  ill  this  regard  is  not  afltit«Ml  hy  the  stiitute  provisions 
existing  in  many  states  as  to  general  acieptanees ;  Nazro  v. 
Fidler,  24  Wend.  :')74 ;  Woodworth  r.  liaiik  of  Amerira,  19 
John.  :l'.»l  :  Hill  '•.  Cooh-y,  4t!  IV-nn.  St.  2.V.« ;  \\'hitesides  v. 
Northern  I'.ank,  lO  liush  5Ul  (1874);  'r(M)mrr  r.  Rutland, 
57  Ala.  37*J  (1^77;;  Townsend  v.  Star  Wagon  Co.,  lO  Neh. 
615  (1880)  ;  Cronkhite  v.  Nebker,  81  lad.  IIW  (1882);  Charl- 
ton V.  Heed,  til  Iowa  l<)t)  (1883).  As  to  drawee's  right  to 
write  in  a  plaee  of  payment  on  aecepting  the  hill,  without 
discharging  the  drawer,  see  Troy  City  Hank  v.  Lauman,  19 
N.  Y.  480 ;  Niagara  District  Hank  v.  Fairman,  31  Harh.  404. 
It  was  held  in  Mahairoe  Hank  v.  Dougla.ss,  31  Conn.  170,  that 
an  alteration  of  the  place  of  date  was  material. 

(3)  Alterations  in  the  principal  or  interest.  —  Any  alteration 
in  the  principal  of  a  written  contract  tor  the  payment  of  money, 
avoids  it,  whether  it  be  increased  by  the  alteration,  Uoodman 
V.  Eastman,  4  N.  II.  455 ;  Bank  of  Commerce  v.  Union  Bank,  3 
Corns.  230 ;  iEtna  Bank  v.  Winchester,  43  Conn.  391  (1875) ; 
Batchelder  v.  White,  80  Va.  103  (1886);  Osborne  v.  Van 
Houten,  45  Mich.  444  (1881)  (as  to  a  guaranty) ;  Johnson  v. 
Moore,  33  Ivans.  90  (1885)  (as  to  the  consideration  of  a  mort- 
gage) ;    or   lessened,   Hewins    v.  Cargill,  67    Me.  554  (1877) ; 


MASTER    V.    MILLER.  1165 

State  Savings  Bank  v.  Shaffer,  9  Neb.  1  (1879).  In  an  early 
case  in  Pennsylvania  it  was  held  where  the  amount  of  a 
note  was  lessened  by  the  principal,  after  execution  by  the 
surety,  and  before  delivery  to  the  payee,  that  the  note  was  not 
avoided ;  but  as  the  identity  of  the  contract  is  now  considered 
the  test  of  materiality,  this  decision  seems  clearl}^  to  be  wrong ; 
Ogle  V.  Graham,  2  Penn.  132.  In  Doane  v.  Eldridge,  16  Gray, 
254,  a  collector's  bond  was  held  to  be  avoided  by  an  alteration 
of  the  penal  sum  to  a  smaller  amount. 

So  any  change  in  the  rate  of  interest,  or  the  addition  of  the 
words  "with  interest,"  or  similar  words,  to  a  non-interest  bear- 
ing note,  avoids  the  instrument ;  Fay  v.  Smith,  1  Allen  477 ; 
Draper  v.  Wood,  112  Mass.  315  ;  Waterman  v.  Vose,  43  Me. 
504 ;  Lee  v.  Stairbird,  55  Me.  491 ;  McGrath  v.  Clark,  56  N.  Y. 
34  (1874) ;  Schwarz  v.  Oppold,  74  N.  Y.  307  (1878) ;  Lamar 
V.  Brown,  56  Ala.  157  (1876)  ;  Neff  v.  Horner,  63  Penn.  St. 
327  ;  Craighead  v.  McLoney,  99  Pa.  St.  211  (1881)  ;  Schnewind 
V.  Racket,  54  Ind.  248  (1876)  ;  Brooks  v.  Allen,  62  Ind.  401 
(1878);  Bowman  v.  Mitchell,  79  Ind.  84  (1881);  Jones  v. 
Bangs,  40  Ohio  St.  139  (1883)  ;  Thompson  v.  Massie,  41  Ohio 
St.  307  (1884)  ;  Ivory  v.  Michael,  33  Mo.  400 ;  Long  v.  Mason, 
84  N.  C.  15  (1881)  (of  a  bond) ;  Kennedy  v.  Moor,  17  S.  C. 
464  (1882)  ;  Canon  v.  Grigsby,  116  111.  151  (1886).  In  Whit- 
mer  v.  Frye,  10  Mo.  348,  a  bond  was  held  to  be  avoided  by  an 
alteration  which  lessened  the  rate  of  interest.  So  where  a  note 
bore  interest  "  at  one  per  cent."  and  "  one  "  was  erased ;  Moore 
V.  Hutchinson,  69  Mo.  429  (1879).  So  where  the  words  "after 
maturity"  were  added  to  the  interest  clause;  Coburn  v.  Webb, 
56  Ind.  96  (1877).  See,  also,  Patterson  v.  McXeely,  16  Ohio 
St.  348,  and  Leonard  v.  Phillips,  39  Mich.  182.  In  Woodward 
V.  Anderson,  63  Iowa  503  (1884),  it  was  decided  that  the  altera- 
tion of  the  rate  of  interest  in  a  certificate  of  deposit  avoided  it. 

(4)  Alterations  in  the  medium  of  payment.  —  The  insertion  of 
words  fixing  the  medium  of  payment,  or  the  erasure  of  such 
words,  is  a  material  alteration  ;  Darwin  v.  Rippey,  63  N.  C.  318 ; 
Laugenberger  v.  Kroeger,  48  Cal.  135  ;  Bogarth  v.  Breedlove,  39 
Tex.  561 ;  Wills  v.  Wilson,  3  Oreg.  308.  But  it  was  held  in 
Bridges  v.  Winters,  42  j\liss.  135,  that  the  insertion  of  the  words 
"  in  gold  "  after  the  amount  in  a  note,  was  not  a  material  alter- 
ation, if  gold  was  the  only  legal  tender.  See,  also,  Hanson  v. 
Crawley,  41  Ga.  303.     In  the  Supreme  Court  of   the  United 


1106  MASTKU    V,    MILLKU. 

• 
Stiitt's,  it  \v;is  (IcfidtMl,  wlit'ie  an  order  \v;is  miidt'  pnviildf  "in 
(Init'ts  to  tlie  ordrr  of  II.  (J.  A.,"  Jind  tliese  woi<ls  \vt*ie  eiii.sed, 
and  "in  cnirtiit  Iniids  "  inserted  in  tlieir  j»l;ue,  that  the  instru- 
iniiit  was  avoideil ;  An^de  v.  N.  \V.  ^r.  Insniance  Co.,  Uli  T.  S. 
3;}0  (^IhTo).  See  also  MartindaU-  r.  FoUrt.  1  \.  II.  0.') :  Schwalm 
V.  Mclntyre,  17  Wis.  232. 

(5)  Alterations  in  respect  of  parties.  —  Any  eluin<(e  in  tlio 
parties  to  a  lontraet,  either  as  to  their  perscinality,  number,  or 
thiir  lej^ral  relations  to  one  another,  is  a  material  jilteration. 
As  to  alterations  of  this  description  avoidin*;  negotiable  paper, 
see  Ilasktdl  v.  Champion,  30  Mo.  13(1  ;  .McCramer  »•.  'riiompson, 
21  Iowa  244;  Davis  r.  Bauer,  41  Ohio  St.  2."^T  (lHS4);  Morrison 
r.  (Jarth,  7H  Mo.  434  (1.SS3);  Rohhinsim  v.  Herryman,  22  Mo. 
App.  ")0!»  ( l.SSt)).  As  to  Im.ikIs,  see  Smith  v.  Weld,  2  l'enii.r)4  ; 
State  V.  I'i.lke,  7  Hlaekf.  27;  I)(.lhin  r.  Ncuton,  17  .Me.  307  ; 
Smith  V.  Iiuted  States,  2  Wall.  210;  United  States  v.  O'Neill, 
V.)  Fed.  IJep.  rj»>  (1SS4).  hut  .see  Hale  v.  Russ,  1  .Me.  334; 
Wilmiii<rton  &  Wel(h)n  K.  R.  ("o.  r.  Kitehin,  l»l  N.  (.'.  39  (18S4). 
As  to  eontraets  of  guaranty  see  Wilde  v.  Armshy,  6  C'ush.  814. 
Striking  out  the  word  "surety"  appended  to  the  name  of  one 
of  two  joint  makers  has  been  ludd  to  be  a  material  alteration. 
Laub  V.  Paine,  4»)  Iowa  o')0  (1.S77).  Rut  wiiere  the  holder 
strikes  out  llu-  iKinir  of  the  surety  with  his  cniist'iit,  it  has  l)een 
ludd  that  the  primipal  is  not  discdiarged  ;  Huntingdon  v.  Fineh, 
3  Ohio  St.  44.").  Changing  a  joint  note  to  a  joint  and  several 
note,  or  a  joint  and  several  note  to  a  joint  note,  av(»ids  it; 
Humphreys  v.  (Juillow,  13  N.  H.  SS") ;  Draper  i*.  Wood,  112 
Mass.  315;  Eekert  v.  Louis,  84  Ind.  Ol>  (1«82).  And  other 
written  eontraets  are  avoided  in  like  manner ;  Waring  v.  Wil- 
liams, 8  Pick.  322;  Kline  v.  Raymond,  70  Ind.  271  (1880). 
But  where  by  statute  a  joint  note  has  the  effect  of  a  joint  and 
several  note,  such  an  alteration  is  innnaterial ;  Miller  v.  Reed, 
27  Penn.  St.  244.  Adding  or  erasing  the  word  "junior"  is  a 
material  alteration;  Broughton  v.  Fuller,  9  Verm.  373.  So 
adding  the  word  "  collector  "  to  a  payee's  name  ;  York  v.  Janes, 
43  N.  J.  L.  332  (1881).  But  see  Manufacturers'  Bank  v. 
Follett,  11  R.  I.  92  (1876),  where  the  word  "agent,"  appended 
to  a  maker's  name,  was  treated  as  merely  descriptio  persojice,  and 
held  not  to  avoid  the  note. 

Effect  of  the  addition  of  another  maker.  —  As  to  the  addition 
of   a  new  maker  or  surety,  the  cases    are    conflicting.      The 


MASTER   V.    MILLER.  1167 

addition  of  a  new  surety  by  the  principal,  without  the  consent 
of  the  first  surety,  before  delivery  to  the  payee,  is  generally  held 
to  be  a  material  alteration.  When  the  instrument  first  becomes 
operative,  it  is  different  in  its  legal  effect  from  that  signed  by 
the  first  surety;  Whitmore  v.  Nickerson,  125  Mass.  496  (1878)  ; 
Hall  V.  McHenry,  19  Iowa  521 ;  Haskell  v.  Champion,  30  Mo. 
136.  In  Ward  v.  Hackett,  30  Minn.  150  (1883),  it  was  held, 
where  the  payee  was  ignorant  of  the  addition  of  the  second 
surety,  that  the  note  was  not  avoided  thereby.  See,  also,  Snyder 
V.  Van  Doren,  46  Wis.  602  (1879).  If  a  new  surety  is  pro- 
cured by  the  payee  or  a  subsequent  holder  after  delivery  by  the 
maker,  it  is  held  in  Massachusetts  that  this  constitutes  a 
collateral  and  independent  contract,  and  that  the  note  is  not 
avoided  thereby ;  Stone  v.  White,  8  Gray  589.  Monson  v. 
Drakely,  40  Conn.  552  (1873) ;  Mersman  v.  Werges,  112  U.  S. 
139  (1884),  accord.  In  McCaughey  v.  Smith,  27  N.  Y.  39,  and 
Brownell  v.  Winnie,  29  N.  Y.  400,  it  was  held  that  the  addition 
of  a  new  maker  did  not  avoid  the  note,  and  that  his  liability 
was  that  of  a  joint  and  several  promisor.  Muir  v.  Demaree, 
12  Wend.  468 ;  Patridge  v.  Colby,  19  Barb.  248 ;  Card  v.  Miller, 
1  Hun  504 ;  Denick  v.  Hubbard,  27  Hun  347  (1882)  ;  Miller 
V.  Finley,  26  Mich.  249  (1872),  accord.  In  the  following  cases, 
however,  such  an  alteration  was  held  to  avoid  the  note ;  Chap- 
pell  V.  Spencer,  23  Barb.  534  ;  Mc Yean  v.  Scott,  46  Barb.  379 
(overruled  in  Denick  v.  Hubbard,  suprci)  ;  Hamilton  v.  Hooper, 
46  Iowa  515  ;  Lunt  v.  Silver,  5  Mo.  App.  186  (1878)  ;  Sullivan 
V.  Ruddisill,  63  Iowa  158  (1883);  Nicholson  v.  Combs,  90 
Ind.  515  (1883).  The  new  surety,  however,  will  be  bound ; 
Hamilton  v.  Hooper,  supra.  As  to  the  addition  of  a  new  surety 
in  a  bond  avoiding  the  instrument,  see  Harper  v.  The  State, 
7  Blackf.  61 ;  O'Neal  v.  Long,  4  Cranch  60. 

(6)  Alterations  affecting  the  operation.  —  A  parol  contract  is 
avoided  by  the  appending  of  a  seal ;  Morrison  v.  Welty,  18  Md. 
169 ;  United  States  v.  Linn,  1  How.  104 ;  Yaughan  v.  Fowler, 
14  S.  C.  355  (1880).  See,  also,  Fullerton  v.  Stm'ges,  4  Ohio  St. 
529.  And  it  would  seem  that  a  specialty  must  be  avoided  by 
detaching  a  seal,  and  it  was  so  decided  in  Piercy  v.  Piercy,  5 
W.  Ya.  199.  See,  also,  Cutts  v.  United  States,  1  Gall.  (C.  C.) 
69 ;  United  States  v.  Spaulding,  2  Mas.  (C.  C.)  478.  Where  a 
seal  is  appended  to  the  signature  of  one  of  several  joint  prom- 
isors, the  instrument  is  avoided  as  to  all ;  Biery  v.  Haines,  5 


ll*)8  MASTKIC    V.    MI1J,EU. 

W'liiirt.  r>*»'>.  -\s  to  lilt'  ftltTl  til  ria^iii^  ;i  >rn»ll,  SIT  Kcni  r. 
Al.tiuof,  7.')  Vji,  4'1A  (  ISSl). 

The  addition  of  witnesaes.  —  As  tu  llu'  I'fffft  of  aiMiii^  to 
wiittt'ii  coMtructs  llu-  iiiiiiu's  of  piirtii's  purporting'  to  U-  wit- 
nesses thereto,  it  is  held,  uheri'  if  attestetl  they  are  atYeeled  hy 
no  Htatutu  of  liniitaticMis,  that  the  alteration  is  innnaterinl,  and 
(hies  not  avoi<l  the  instrnnicnt  unh'ss  made  with  franduh-nt 
intent;  A<hinis  r.  Frye,  '.\  Mit.  !<•;>  (as  to  iNtnds);  Uhiekwell  r. 
Lane,  4  Dev.  A:  H.  (N.C.)  L.  llo.  Hut  in  FuUer  r.  (ireen, 
•  •I  Wis.  159  (l8Hr>),  as  to  notes  (there  U'in^  n«»  statute  of 
limitations  in  rej^Mrd  to  attested  notes),  it  was  tUu'ided  that 
a  note  was  not  avoich-d  hy  such  an  altt-ration,  thoui,di  niadi*  witlj 
frau(hiltiit  iiiicii).  I'ut  see  Mai-shall  r.  (iouj^der,  lOS.vV  U.  hJ4. 
W'iieii!  then-  is  a  statute  of  limitations  e»»nrernin^'  attested 
notes,  sueh  an  alteration  avoids  tiu-  instrument;  Homer  t*. 
Wallis,  11  Mass.  :WJ;  Kddy  r.  l5oiid,  !'.•  M.'.  4«;i  ;  and  it  w.mld 
seem  that  the  (|U(stif»n  of  intent  would  U-  irrelevant ;  hut  it  ha.s 
hcen  decided,  that  if  the  attesting  witness  was  netually  present 
when  the  note  was  executed,  that  such  an  alteration  tloes  not 
avoid  it;  Rollins  r.  hartlett,  20  Mv.  'M\^ :  Thornton  r.  Apple- 
ton,  -JU  Me.  liUH;  Milhcrry  v.  Storer,  To  Me.  (IH  (1SS:i).  See, 
also.  Smith  v.  Dunham,  S  Pick.  J">t>.  In  I''ord  r.  Ford,  IT  I'ick. 
418,  it  was  held  that  the  addition  of  a  second  witnt'ss  to  an 
attested  note  did  not  avoid  it.  See,  also,  Willard  '•.  ("lark, 
7  Met.  4:'.;");  ("hurch  r.  Fowle,  14i!  .Mass.  82  (ISS*',).  in  Sharpo 
V.  Hajj^well,  I  l)ev.  l".(i.  llo,  wheie  a  payee  cut  otT  the  name  of 
an  attestint,^  witness,  it  was  held  that  the  note  was  avoided. 

It  has  heen  held,  where  words  are  adih-d  to  the  j^eneral  con- 
sideration clause  in  a  note,  deserihinLf  the  special  consideration, 
that  the  note  is  avoided;  Knill  r.  \\'illian>s,  10  East  418;  Low 
IK  Argrave,  80  CJa.  125'.  Addinj^  words  of  ne£fotiahility  t(t  a 
non-negotiable  note  avoids  it;  Brute  v.  Westcf)tt,  8  Harh.  274; 
Johnson  v.  Bank  of  United  States,  2  15.  Mt»n.  310;  State  v. 
Stratton,  2T  Iowa  424.  See.  also,  lloUis  c.  N'andergrift,  o  Del. 
521  ;  :\IeCoY  V.  Lockwood,  Tl  Ind.  819  (1880).  In  Byrom  v. 
Thompson,  11  Ad.  &  Kl.  ^U.  it  was  held  that  such  words  might 
be  inserted  Avliere  they  had  been  omitted  by  a  mutual  mistake. 
The  substitution  of  the  words  "  or  bearer "  for  the  words  "■  or 
order  "  in  a  note  is  a  material  alteration ;  Belknap  v.  National 
Bank  of  America,  100  Mass.  8T6 ;  Union  National  Bank  v. 
Roberts,  45  Wis.  3T3 ;  Booth  r.  Powers,  oi^  N.  Y.  22  (18T4) ; 


MASTER    V.    MILLER.  1169 

Needles  v.  Shaffer,  60  Iov^^a  65  (1882).  But  in  Weaver  v. 
Bromley  (Mich.)  31  N.  W.  Rep.  839  (1887),  it  was  adjudged 
that  writing  in  the  words  "  or  bearer  "  without  the  erasure  of 
the  words  "or  order"  did  not  avoid  the  note.  In  Flint  v. 
Craig,  59  Barb.  330,  it  was  decided  that  it  was  not  a  material 
alteration  to  change  a  note  payable  to  bearer  to  one  payable  to 
order.  In  Stoddard  v.  Penniman,  108  Mass.  366,  where  a  note 
payable  to  the  maker's  order,  and  indorsed  in  blank  for  his 
accommodation,  was  altered  by  the  maker  so  as  to  be  payable 
to  the  plaintiff  who  advanced  money  upon  it,  the  court  decided 
that  the  indorser  was  discharged,  since  his  liability  was  thereby 
changed  from  that  of  an  indorser  to  that  of  an  original  prom- 
isor. See,  also,  Davis  v.  Bauer,  41  Ohio  St.  257  (1884).  In 
Grimes  v.  Piersol,  25  Ind.  246,  where  an  indorsee,  without  the 
consent  of  the  indorser,  substituted  for  his  own  name  in  the  full 
indorsement  the  name  of  a  transferee,  it  was  held  that  the 
indorser  was  not  liable  to  such  transferee.  But  see  sujrra  as  to 
the  restoration  of  altered  instruments.  See,  also,  Mechanics' 
Bank  V.  Valley  Packing  Co.,  70  Mo.  643  (1879).  Filling  up  a 
blank  indorsement  contrary  to  the  tenor  of  the  bill  is  a  mate- 
rial alteration;  Hirshfeld  v.  Smith,  L.  R.  1  C.  P.  340.  So 
adding  a  waiver  of  demand  and  notice  to  an  indorsement; 
Farmer  v.  Rand,  14  Me.  225.  But  qucere  whether  the  note 
would  be  avoided  as  to  the  maker.  So  even  adding  the  words 
"  without  recourse  "  to  an  indorsement  discharges  the  indorser ; 
Luth  V.  Ste^yart,  6  Victorian  Rep.  383.  The  insertion  or  oblit- 
eration of  a  material  memorandum,  whether  written  in  the  body 
of  the  instrument,  or  in  the  margin,  or  indorsed  upon  it,  is  a 
material  alteration ;  Warrington  v.  Early,  2  El.  &  B.  763 ; 
Gerrish  v.  Glines,  56  X.  H.  9  (1877);  Johnson  v.  Heagan, 
23  Me.  329 ;  Woodworth  v.  Bank  of  America,  19  John.  381 ; 
Benedict  v.  Cowden,  49  N.  Y.  396;  Wheelock  v.  Freeman. 
13  Pick.  165 ;  Wait  v.  Pomeroy,  20  Mich.  425 ;  Blake  v.  Cole- 
man, 22  Wis.  415 ;  Price  v.  Tallman,  1  N.  J.  Law  447.  See, 
also,  Johnston  v.  May,  76  Ind.  293  (1881).  As  to  immaterial 
memoranda,  see  infra.  In  Dietz  v.  Harder,  72  Ind.  208  (1880), 
it  was  held  that  the  material  alteration  of  an  instrument  in  suit 
avoided  it.     See,  also,  Rhoades  v.  Castner,  12  Allen  130. 

(b)  Immaterial  alterations.  —  The  addition,  or  striking  out,  of 
words  in  a  Avritten  contract  does  not  avoid  it,  if  the  legal  effect 
remains  unchanged.     Thus  writing  in  the   name  of  the  bank 


117<»  MASTKU    V.    MlLLKi:. 

after  llie  Wind  "  LiislutT,"  apiu'iitled  to  si^^niature  on  a  iiotf  ;  Bank 
of  (lenesee  v.  Patchin  Hank,  '\  Kern.  300.  See,  al.s(>,  Mannfac- 
turers'  Jiank  v.  Folk-tt,  11  l{.  I.  i>2.  So  tiittin^r  off  tlie  word 
"trustees  "  ai)i>en(Ie(l  to  the  si<^natures  of  the  makers  of  a  note, 
since  their  liahility  was  not  uffeeted  thereby  ;  Hurlinganie  v. 
Brewster,  79  III.  51') ;  Hayes  v.  Matthews,  «):{  In. I.  \\-2.  So  sul>- 
stitutinp  the  firm  styh'  for  the  words  "  Provich'nee  Sieam  Co.," 
when  the  j»arties  did  l)nsiness  under  Indh  nanjes ;  Arnohl  r. 
Jones,  2  U.  I.  34;').  So  achMnj^  tlie  Christian  name  of  the  <lrawer 
of  a  hill;  lilair  v.  Hank  of  Tennessei*,  1 1  IIniii[ih.  S4.  So  the 
interlineation  of  the  surname  of  the  j)ayee  ;  .Manehet  r.  Cason, 
1  Hrev.  307.  So  clmn^inu^  the  Christian  nanie  of  payee  so  jis 
to  conform  to  the  fact  ;  Deshy  r.  Tiirall,  44  \'erm.  414.  So 
crossing''  out  the  middle  h-ttt-r  of  payee's  name  whii-h  had  ])i'en 
accidentally  inserted  ;  Cole  r.  Hills,  44  N.  H.  227.  Retracing 
fiuled  name  in  clear  ink;  Dunn  »•.  Clements,  7  Jones  (N.  C.) 
Law  ')8.  See  also  Reed  r.  Roark,  14  Tex.  321» ;  Turner  v.  Bella- 
gram,  4<)  Mo.  4<»4.  So  an  att«nipted  nhliteration  in  lead  pencil; 
Chase  V.  Washington  Insurant*'  Company,  12  Bail).  ')•.».").  So 
writiiii^'in  the  wonls  "'an*!  exeiut«'(l '*  after  the  word  "signed;" 
Langtlon  v.  Raul,  20  \'erm.  217.  An  alteration  in  the  marginal 
numhers  of  negotiable  bonds  is  held  to  be  immaterial;  Com- 
monwealth V.  Kmigrant  Industrial  Bank,  '.»<s  Mass.  12;  Bersdell 
V.  Russell,  21»  N.  V.  220;  City  of  Elizabeth  v.  Force,  20  N.  J. 
Eq.  i)i)\.  But  the  alteration  of  the  lunnber  of  a  Bank  of  Eng- 
land note  was  held  to  be  material ;  Suffell  r.  Bank  of  England, 
9  Q.  B.  I).  ;'>;")')  (1882).  It  is  an  immaterial  alteration  to  change 
the  marginal  tigures  of  a  note  so  that  they  shall  conform  to  the 
written  amount;  Smith  v.  Smith.  1  R.  I.  308.  S<j  the  insertion 
of  dollar  mark  before  marginal  tigures;  Houghton  r.  Francis, 
20  111.  244.  So  adding  words  to  a  deed  of  conveyance  which 
simply  express  the  legal  effect  of  the  instrument;  lirown  v. 
Pinkham,  18  Pick.  172;  Sharpe  v.  Orme,  »il  Ala.  203.  So  writ- 
ing in  such  words  in  a  note ;  Scott  v.  Calkin,  130  ]Miuss.  529 
(1885).  See,  also,  Belden  v.  Hann,  61  Iowa  42  (1883).  So 
filling  up  immaterial  blanks  in  a  deed,  or  interlining  or  altering 
immaterial  words ;  Vose  v.  Dolan,  108  Mass.  155 ;  Ilarsky  v. 
Blackmarr,  20  Iowa  171;  Burnliam  v.  Ayer,  35  N.  H.  351; 
Gordon  v.  Sizer,  30  ]Miss.  805 ;  Crawford  v.  Dexter,  5  Sawyer 
(C.  C.)  201.  So  inserting  the  Christian  name  of  the  party  by 
whose  land  the  granted  premises  are  bounded ;  Hatch  v.  Hatch, 


MASTER   V.    IVnLLEE.  1171 

9  Mass.  307.  So  substituting  for  tlie  name  of  the  sheriff  as 
obligee  of  a  bail  bond,  the  name  of  the  constable  who  served 
the  writ.  Hale  v.  Russ,  1  Me.  334.  So  writing  in  mere  sense- 
less words.  Thus  in  Granite  Railway  Co.  v.  Bacon,  15  Pick. 
239,  the  payee  of  a  note  indorsed  in  blank,  wrote  the  name  of 
the  accommodation  indorser  over  his  own  name,  and  it  was  held 
to  be  an  immaterial  alteration.  "As  mere  senseless  words, 
written  on  a  subsisting  instrument  complete  in  itself,  they  did 
not  affect  the  terms,  the  effect,  or  the  identity  of  the  contract." 
Shaw,  C.  J.  Compare  Weaver  v.  Bromley  (Mich.)  31  N.  W. 
Rep.  839  (1887).  The  insertion  of  the  name  of  the  obligor  in 
the  body  of  the  bond  after  execution  is  an  immaterial  altera- 
tion;  Smith  V.  Crooker,  5  Mass.  538;  Wilder  v.  Butterfield,  50 
How.  (N.  Y.)  385;  Bird  v.  Bird,  40  Me.  398.  An  alteration 
made  to  correct  a  mutual  mistake  is  generally  held  to  be  imma- 
terial. But  see  Taylor  v.  Taylor,  12  Lea  (Tenn.)  714  (1883), 
contra.  Thus  changing  the  date  to  correspond  with  the  inten- 
tion of  the  parties ;  Duker  v.  Franz,  7  Bush  273.  But  see 
Bowers  v.  Jewell,  2  N.  H.  543 ;  Hamilton  v.  Wood,  70  Ind.  306 
(1880);  Gill  V.  Hopkins,  19  111.  App.  74  (1886).  See  in  sup- 
port of  this  principle,  Clute  v.  Small,  17  Wend.  242 ;  Connor 
V.  Routh,  7  How.  (Miss.)  176;  Hunt  v.  Adams,  6  Mass.  519; 
Boyd  V.  Brotherson,  10  Wend.  93 ;  Pease  v.  Dwight,  6  How. 
190 ;  Harvey  v.  Harvey,  15  Me.  357 ;  McRaven  v.  Harve}^  53 
Miss.  542.  In  Rhodes  v.  Castner,  12  Allen  130,  where  a  party 
to  a  contract  for  the  sale  of  goods  added  his  own  signature  to  a 
memorandum  signed  by  the  other  part}-,  it  was  held  that  the 
alteration  was  immaterial. 

Mere  explanatory  memoranda  written  on  an  instrument  do 
not  avoid  it.  Thus,  "left  with  Mr.  B.  as  collateral,"  indorsed 
upon  a  note ;  Bachellor  v.  Priest,  12  Pick.  399 ;  so  "  subject 
to  a  contract  made";  Gushing  v.  Field,  70  Me.V50  (1880). 
See  also  Struthers  v.  Kendall,  5  Wright  214 :  Hubbard  v. 
Williamson,  5  Ired.  397  ;  Warlter  v.  Cubley,  2  Cr.  &  M.  151. 
So  a  memorandum  of  an  independent  and  collateral  agree- 
ment is  immaterial.  Thus  in  Cambridge  Saving's  Bank  v. 
Hyde,  131  Mass.  77  (1881)  it  was  held,  where  a  payee  indorsed 
upon  a  note  an  agreement  with  the  principal  that  after  a  cer- 
tain date  the  rate  of  interest  should  be  less,  that  this  was 
merely  collateral  to  and  independent  of  the  note,  an(J  that  the 
surety  would  not  be  discharged  thereby.     See,  also,  Stone  v. 


117J  MASTKl:    V.    MILLKU. 

White,  H  (Jray  ')S1> ;  'riuiuiRr  i:  Wt'iin>liill,  H  Lrij;li  (\'ii.)  G2 ; 
Hobiiisoii  «'.  l*li«i'Mix  Iiismunro  Co.,  2.')  lowii  AM);  Kroiich  v. 
Slionz,  ol  Wis.  •J(>4 ;  .liuksnii  v.  Boyles,  i'A  Utwn  428.  In 
Diexler  v.  Smith,  30  Vvd.  \lv[).  7/>4  (IH87),  this  piiiuiple  wiw 
exteii(h<l  to  ;i  iiu'inoiiinduiu  «)f  extension  of  time  of  |tiiyn)ent 
wiitttii  nil  the  fine  ()f  tlie  note;  anil  in  Mj)ore  r.  Macon  Savings 
Bank,  2-  Mo.  Aj»p.  Os4  (1SS«;),  the  «h'eision  was  to  the  sanio 
effect,  wlicre  a  simihir  memorandum  was  indorsed  upon  the 
note.  Ill  LittK'tichl  r,  Coumhs,  71  \1<  .  ll'»  (lss<»),  this  prin- 
ciple was  even  applicil  to  ;i  memorandum  of  a  j^Tcater  rate  of 
interest  written  on  tlu'  note  with  the  c<»nsent  of  the  principal, 
and  till!  surety  was  lu  Id  not  to  U'  rjiscliar^ed.  Compare  Xiek- 
eison  V.  Sweet,  13.5  Mass.  514  (1KS8).  It  lias  Ihmii  hehl  that 
the  cuttini;  off  of  a  receipt  from  a  ImukI  tloes  not  av«tid  the 
instrument;  (ioodfellow  v.  Insler,  12  N.  .1.  Va\.  .Soo  ;  Simms 
V.  Pas(  hall,  ;■)  Ind.  Law  27»;;  Hiyaii  >:  Dyer,  28  III.  1H8.  See, 
also,  Warner  v.  Sjhucci,  7  .1.  .1.  Marsh.  340;  hut  in  Ilert  v. 
Ochlrr,  80  Ind.  S3  (Issl),  ii  was  litdd  that  the  erasure  of  an 
indorsciiiciil  i>\'  payment  (»f  interest  avoided  the  note.  See,  also, 
Johnston  v.  .May,  7«;  In<l.  2".»3  (1881  ).  As  to  immaterial  alti-ra- 
tions  in  subscriptions  of  stock  see  Whitth'sey  v.  Franz,  74  N.  V. 
61>7.  As  to  immateiial  alterations  in  policies  of  insurance  see 
Robinson  v.  IMnenix  Insurance  Co.,  2.")  Iowa  430;  Martin  v. 
Insurance  Co.,  lol  N.  V.  4!»8  (188t;). 

10.  Bona  fide  holders  of  negotiable  paper.  Estoppel.  —  The 
general  principle  is  well  established  that  the  material  alteration 
of  neq;otiable  paper  avoids  it,  even  in  the  hands  of  a  sukscfjuent 
innocent  holder,  and  althoui,di  tlu'  alteration  cannot  be  discov- 
ered bv  the  (dosest  inspection  ;  and  in  ri'i,Mrd  to  altered  pa[)er, 
bond  fi'/t'  puridiasers  for  value  and  innocent  pavi-cs  stand  on  pre- 
cisely the  same  footing;  Agawam  liank  v.  .Sears,  4  (iray  l>5 ; 
Wade  V.  WIthington,  1  Allen  5t)l ;  Adair  v.  England,  58  Iowa 
314;  .Etna  Hank  v.  Winchester,  43  Conn.  3in  ;  Hank  of  Ohio 
Valley  v.  Lockwood,  13  W.  \'a.  392  (1878)  ;  Savings  Hank  v. 
Shaffer,  9  Neb.  1  (1879)  ;  Suffell  r.  Bank  of  England,  9  Q.  B. 
D.  555  (1882)  ;  Hert  v.  Oehler,  80  Ind.  83  (1881)  ;  Jones  v. 
Bangs,  40  Ohio  St.  139  (1883);  and  most  courts  follow  the 
views  of  the  majority  of  the  court  in  Master  v.  Miller  in  hold- 
ing that  a  recovery  cannot  be  had  upon  the  instrument  even  in 
its  original  shape:  Draper  ?'.  Wi^od.  112  Ma<^.  315;  Citizen's 
Bank  v.  liichmond,  121  Mass.  110  (1876),  and  cases  cited  supra. 


MASTEE    V.    MILLER.  1173 

See,  however,  Worrall  v.  Gheen,  39  Penn.  St.  388,  contra^  and 
cases  cited  supra  as  to  alterations  by  the  maker  of  a  note  being 
treated  as  acts  of  spoliation. 

When  negotiable  paper  is  delivered  in  an  incomplete  shape 
the  law  is  that  innocent  holders,  both  payees  and  purchasers 
for  value,  may  recover,  though  the  blanks  have  been  filled 
up  contrary  to  the  instructions  of  the  party  to  be  charged ; 
Putnam  v.  Sullivan,  4  Mass.  45 ;  Androscoggin  Bank  v.  Kim- 
ball, 10  Gush.  373 ;  Violette  v.  Patton,  5  Granch  142 ;  Bank  of 
Pittsburg  V.  Neal,  22  How.  96 ;  Rainbold  v.  Eddy,  34  Iowa  440 ; 
Abbott  V.  Rose,  62  Me.  194;  Smith  v.  James,  32  Ind.  202; 
Redlich  v.  Doll,  54  N.  Y.  234 ;  Overton  v.  Mathews,  35  Ark. 
147  (1879)  ;  Wessell  v.  Glenn,  108  Penn.  St.  104  (1884).  In 
Snyders  v.  Van  Doren,  46  Wis.  602,  the  court  held,  where  a 
blank  note  was  signed  by  a  surety,  and  a  new  surety  was  pro- 
cured by  the  principal,  and  the  instrument  was  filled  up  as  a 
joint  note,  that  the  first  surety  was  not  discharged.  In  Holmes 
V.  Trumper,  22  Mich.  427,  Avhere  a  blank  for  the  rate  of  interest 
was  filled  up,  the  note  was  held  to  be  avoided,  even  in  the 
hands  of  a  subsequent  innocent  holder.  So  Gharlton  v.  Reed, 
61  Iowa  166  (1883),  and  Gronkhite  v.  Nebeker,  81  Ind.  319 
(1882),  where  a  blank  for  the  place  of  j^ayment  was  filled  up. 
But  it  is  hard  to  defend  these  cases  either  on  principle  or 
authority.  If  a  bill  or  note  is  partly  filled  up,  any  alteration  in 
the  part  so  filled  up  avoids  it ;  Ivory  v.  Michael,  33  Mo.  400 ; 
Ives  V.  Farmers'  Bank,  2  Allen  236  ;  Angle  v.  Northwest  Mutual 
Life  Insurance  Gompany,  92  U.  S.  330  (1875)  ;  Luellen  v.  Hare, 
32  Ind.  211.  See,  also,  Weyerbauser  v.  Dun,  100  N.  Y.  150 
(1885).  And  in  McGrath  v.  Glark,  5Q  N.  Y.  34,  it  was  held 
that  a  note  was  avoided,  even  as  to  subsequent  innocent  holder, 
when  in  a  blank  for  the  place  of  payment  were  inserted  the 
words  "  with  interest." 

When  the  instrument  as  executed  is  complete,  and  blank 
spaces  left  between  the  words  are  fraudulently  filled  up,  the 
generally  accepted  doctrine  is  that  the  principle  of  estoppel 
cannot  be  invoked  in  behalf  of  a  subsequent  innocent  holder ; 
Greenfield  Bank  v.  Stowell,  123  Mass.  196;  Gape  Ann  Bank  v. 
Burns,  129  Mass.  596;  Redlich  v.  Doll,  54  N.  Y.  34;  McGrath 
V.  Glark,  5Q  N.  Y.  34;  KnoxviUe  Bank  v.  Clark,  51  Iowa  264; 
Washington  Bank  v.  Ekey,  51  Mo.  272;  McGoy  v.  Lockwood, 
71  Ind.  319  (1880)  ;  Fordyce  v.  Kosminski,  3  S.  W.  Rep.  892 


117  1  MASTKU    V.    .MIl.LKl:. 

(Ark.)  (1887).  See,  iil.S(),  linlau'S  r.  'rruiiiiui-,  Cluirltoii  r.  Reed, 
and  ("loiikiiito  v.  Nelieker,  cited  nupra.  Tlie  f«»lli)wiii^  ciuieM, 
however,  ail(ti»t  tlie  i)riiiei|)le  of  estoppel  ;  I'ii^an  v.  Wylie,  1 
Ross,  Leudin^'  Cases,  140;  Isnard  v.  Torres,  lO  I^a.  An.  103; 
(larrard  i\  Iladden,  ♦JT  I'eiui.  St.  82;  lUakey  v.  .lolmson,  13 
IJii>li  197  (1877);  Yoeuia  r.  Smith,  03  111.  321  (1872).  This 
dotlriiie  has  also  Ix-en  applied  to  the  severiiii,'  of  nieiuoraiida  easy 
to  l)e  delaehed;  Zimineiinaii  v.  Rote,  7o  iViiii.  St.  ISS  (1.S74); 
Noll  V.  Smith, «;  I  In.l.  .".I  I  (1878).  See,  also,  hrowii  r.  Rred,  70 
Peiiii.  St.  370  (ls7o).  Hut  si-e  Wait  v.  l'omert»y,  20  Mich. 
42o ;  iieiiediet  r.  Cowih'ii,  41»  N.  V.  '.VM)\  Palmer  v.  Sargent,  5 
Neb.  225 ;  Davis  v.  Henry,  13  Nei).  41>7  (1882),  contra.  So,  also, 
nejjotiahle  paper  has  heeii  lu-ld  not  to  he  uvoide«l  in  the  hands 
of  a  suiiseijuent  innocent  holder,  hy  the  erasure  of  conditions 
written  on  the  instrument  in  pencil;  Harvey  f.  Smith,  oo  III. 
224.  Sec  also  Seihill  v.  \'auj^han,  GU  111.  2.")7.  Young  r.  Grote, 
4  Hing.  2o:'.,  is  largely  resjM»nsilile  for  this  <langerous  extension 
of  the  doctrine  of  estoppel.  I''or  explanations  of  this  rase  see 
the  opinion  of  ('ockl)uni,  ('.  J.,  in  S\v;ui  v.  Australasian  Co.,  2 
U.  *S:  C.  17r>:  also  Halifax  I'nion  v.  Wheelwright,  L.  R.  lo  Kx. 
1S3.  'i'lif  facts  of  Yi>ung  v.  (irote  were  [»ecnliar.  First,  the 
altered  instnuiicnl  was  a  check;  second,  the  addition  was  nnnle 
hy  a  conlidcntial  clerk,  who  had  Ix-i'n  alloweil  hy  the  drawer  to 
till  n[>  the  check,  so  that  any  alterations  or  additions  mad*-  after- 
wards would  l)e  in  tlu'  same  handwriting.  In  commenting  U[)on 
this  case  in  Crcentiehl  Bank  v.  Stowell,  cited  »»//>rrt.  Gray,  C.  J., 
says:  ""  If  tlic  negligence  of  the  customer  affords  opportunity  to 
a  clerk  or  other  person  in  his  employ,  to  add  to  the  terms  of  a 
draft,  and  thereby  mislead  the  hanker,  the  customer  may  well  he 
held  liable  to  the  banker.  But  even  as  between  customer  and 
banker,  the  former  has  not  been  held  liable  for  an  unauthorized 
alteration  or  acldition  l)y  a  stranger;  ami  that  the  signer  of  a 
note  complete  upon  its  face,  and  not  entrusted  by  him  to  any 
person  for  the  purpose  of  being  lilled  up  or  added  to,  but  after- 
wards altered  without  his  authority  or  assent,  by  the  insertion 
of  additional  words  in  blank  spaces  therein,  should  be  held  lia- 
ble to  an  action  on  the  note  in  its  altered  form,  is  unsupported 
by  any  English  cases,  and  is  opposed  to  the  weight  of  tlie 
American  authorities."  In  a  very  recent  New  York  case,  Craw- 
ford V.  West  Side  Bank,  100  X.  Y.  50  (188.5).  it  was  held  that  a 
check  was  avoided  by  a  material  alteration  made  by  a  confiden- 


MASTER    V.   MELLER.  1175 

tial  clerk  to  whom  it  had  been  entrusted.     See,  also,  Belknap  v. 
Bank  of  America,  100  Mass.  376. 

11.  Legal  presumptions  and  burden  of  proof.  —  In  a  note  of  this 
kind  it  is  perhaps  unnecessary  to  do  more  than  cite  a  few  of 
the  later  and  more  prominent  decisions  upon  a  branch  of  the 
law  of  evidence  which  presents  the  greatest  difficulty,  and  in 
regard  to  which  there  is  so  much  disagreement  among  the 
courts  of  the  various  states.  In  England  and  Massachusetts 
the  law  is,  that  where  there  is  an  apparent  alteration  on  negoti- 
able paper  or  other  parol  contracts,  tlie  burden  of  proof  is  upon 
the  plaintiff  to  show  that  the  alteration  was  made  before,  or 
contemporaneousl)^  with,  the  execution  of  the  instrument,  but 
that  there  is  no  presumption  of  law  as  to  the  time  when  the 
alteration  was  made;  2  Taylor  on  Evidence,  §  1819  (8th  edi- 
tion) ;  Norwood  v.  Fairservice,  Quincy,  189 ;  Wilde  v.  Armsby, 
6  Cush.  314 ;  Ely  v.  Ely,  6  Gray  439 ;  Newman  v.  Wallace,  121 
Mass.  323  (1876).  In  Massachusetts  it  has  been  decided  that 
it  is  not  incumbent  upon  the  plaintiff  to  explain  an  alteration 
before  the  introduction  of  the  instrument  in  evidence,  and  that 
proof  of  the  defendant's  signature  establishes  a  prima  facie  case ; 
Davis  V.  Jenny,  1  Met.  221 ;  Agawam  Bank  v.  Sears,  4  Gray 
95.  In  Ely  v.  Ely,  6  Gray  439,  the  court  say :  "  The  alteration 
may  be  of  such  a  character  that  the  plaintiff  may  safely  rely 
upon  the  paper  itself  and  the  subject-matter  as  authorizing  the 
inference  that  the  alteration  was  made  before  the  execution, 
or  he  may  introduce  some  very  slight  evidence  to  account  for 
the  apparent  interlineations."  In  Simpson  v.  Davis,  119  Mass. 
269  (1876),  Endicott,  J.,  says:  "The  same  rule  applies  as 
where  a  want  of  consideration  is  relied  on  as  the  defence  to  a 
promissory  note ;  the  burden  of  proof  is  on  the  plaintiff,  upon 
the  whole  evidence,  to  establish  that  fact."  But  where  it 
appears  on  inspection  that  the  alteration  was  made  after  execu- 
tion, the  jury  ma}"  so  infer  notwithstanding  the  proof  of  signa- 
tui'e,  and  without  the  introduction  of  an}-  evidence  on  the  part 
of  the  defendant  to  show  that  the  alteration  was  made  after 
execution ;  Wilde  v.  Armsby,  supra.  It  has  been  held  by  the 
United  States  Supreme  Court  and  the  courts  of  several  of  the 
states  that  there  exists  a  presumption  of  law  that  the  alteration 
was  made  after  execution ;  United  States  v.  Linn,  1  How.  104 ; 
Simpson  v.  Stackhouse,  9  Barr  186 ;  Hills  v.  Barnes,  11  N.  II. 
395;  Dow  v.  Jewell,  18  N.  H.  356;  Miller  v.  GiUeland,  19  Pa. 


117^3  MASTKi:    v.    mim.kr. 

St.  110;  Nfff  /•.  III. 111. 1,  <■>;'»  I*a.  St.  ol'7  ;  ;iinl  ili;ii  tin-  ultrnition 
must  Ih>  exi>l;iini(l  Ixforf  tin*  instruiiifiit  ran  1k'  iiitrodiiciMl  in 
evidence;  Biirj,Miin  v.  lii>ilioj),  91  I*a.  St.  HM  (1H71»).  On  the 
otlier  hand,  it  lias  lu-fn  ludd  hy  some  of  our  courts  that  thf  hiw 
raises  a  presumption  that  tlie  alteration  was  made  at  tlie  time 
of  the  j'xeeution,  and  tliat  where  no  evich-nee  whatever  is  intro 
dueed  by  either  side,  the  verdict  shall  In*  for  the  plaintiff; 
Gooch  {'.  Bryant,  13  Me.  38»; ;  I)o«lj(e  r.  Haskell,  r.l>  Me.  429; 
Putnam  v.  Clark,  38  N.  J.  Eq.  338;  Paramore  v.  Lindsey,  68 
Mo.  tl3;  Johns  r.  Harrison,  20  Ind.  317;  Wilson  r.  Harris,  35 
Iowa  r)()7.  Tlu!  iM'tter  rule  seems  to  Ih'  that  the  question  of 
the  time  of  the  alteration  is  for  the  jtny  upon  all  the  evi- 
<lence  in  the  case,  Kuth  intrinsii?  and  t-xtrinsie,  and  that  there 
are  no  [)resumptions  of  law  either  way  ;  hut  that  the  liurden 
of  jiroof  is  upon  the  plaintiff  to  show  that  the  paper  declared 
upon  was  duly  executed  in  manner  and  form  as  .set  forth  in  tlie 
declaration.  This,  as  has  In-en  seen,  is  the  law  prevailing;  in 
Knt,dand  and  Massachusett.s,  and  it  is  recoj^nized  hy  the  majority 
of  the  courts  of  the  I'luted  States;  IU>aman  v.  Kusstdl,  20 
Venn.  20.-,;  CunilHMland  Hank  r.  Hall,  1  Halst.  2i:>;  Tyree  r. 
liives,  .")7  Ala.  173;  Chism  r.  Toomer,  27  Ark.  109;  Corcoran  r. 
Doll,  32  Cal.  89;  Haydcn  r.  (Joodnow,  39  Conn.  VU -,  Warren 
V.  Lay  ton,  o  Ilarr.  (Del.)  404;  Planters'  Hank  r.  Irwin,  :'.!  Ca. 
371;  .McAllister  r.  Avery,  17  III.  App.  r.08  (188;",);  Neil  v. 
Case,  2;")  Kan.  510;  Kllurt  r.  McClelland,  8  Bush  r)77  :  Willett 
V.  Shepard,  34  Mieh.  loCi;  Wilson  r.  Henderson.  17  Miss.  375; 
Bank  r.  Morrison,  17  Neh.  341  ;  Pease  v.  Barnett,  27  Hun  378; 
Rogers  v.  Voshurgh,  87  N.  Y.  228  (1881);  Keen  v.  Monroe,  75 
Va.  424  (1881). 

In  England  and  many  of  the  states  of  this  country,  it  is 
held  that  alterations  in  deeds  are  presumed  to  have  been  made 
before  or  contem[)oraneously  with  execution,  and  that  the  bur- 
den of  proof  is  upon  the  defendant  to  prove  that  they  were  made 
subsequently;  2  Taylor  on  Evidence,  §  1819  (8th  edition); 
Doe  V.  Catomore,  16  Q.  B.  745:  Cox  v.  Palmer,  1  McCrary, 
431  (1880);  Little  v.  Tlerndon,  10  Wall.  26;  Den  v.  Farlee, 
21  N.  J.  L.  279;  Gordon  v.  Sizer,  39  :\Iiss.  805;  Sharpe  v. 
Orme,  61  Ala.  263;  Stiles  v.  Probst,  69  111.  382;  Feig  v.  Meyrs, 
102  Pa.  St.  10  (1881) ;  Letcher  v.  Bates.  6  J.  .T.  Marsh.  524. 
But  in  Massachusetts  and  some  other  states  no  distinction  is 
made  between  alterations  in  deeds  and  alterations  in  parol  con- 


MASTER    V.    MILLER.  1177 

tracts;  Ely  v.  Ely,  6  Gray  439;  Prevost  v.  Gratz,  Pet.  (C.  C.) 
364;  Herrick  v.  Malin,  22  Wend.  388;  Acker  v.  Ledyard,  8 
Barb.  514;  Dow  v.  Jewell,  18  N.  H.  340;  Dolbier  v.  Norton, 
5  Shepl.  307;  Van  Horn  v.  Bell,  11  Iowa  465;  Deem  v. 
Phillips,  5  W.  Va.  168 ;  Galland  v.  Jackman,  26  Cal.  79 ;  Pipes 
V.  Hardesty,  9  La.  Ann.  152. 

Alterations  in  ancient  writings  and  official  returns  are  pre- 
sumed to  have  been  rightfully  and  properly  made  ;  Wilbur  v. 
Wilbur,  13  Met.  405 ;  Shinn  v.  Hicks,  Sup.  Ct.  Tex.  4  S.  W. 
Rep.  486  (1887) ;  Bell  v.  Brewster,  Sup.  Ct.  Ohio,  10  N.  E.  Rep. 
679  (1887);  Trimlestown  v.  Kemmis,  9  CI.  &  Fin.  763;  Evans 
V.  Rees,  10  A.  &  E.  151. 


WAUGII  V.  CARVER,  (^ARVER,  AND  OTESLER. 

MICHAELMAS— VA  (,E().  W,  C.  11 
[UKi-oiti  r.ii  2  II.    III..   235. J 

A.  and  li„  xliiiy-agentx  at  different  portu^  enter  into  an  agreement 
tu  xhtire,  in  certain  proportions,  the  projitu  of'  their  respective 
commigsionif,  and  the  diifcount  on  tradesmen  »  bills  employed  by 
them  in  repairing  the  ships  vonsiyned  to  them,  Jv.  By  this 
agreement  they  become  liable,  as  partners,  to  all  persons  with 
tvhom  either  contracts  as  nuch  ayent,  thouyh  the  ayreement  pro- 
vides that  neither  shall  be  ant^iverable  for  the  acts  or  losses  of 
the  other,  but  each   for  his  men. 

lie  who  takes  the  yeneral  profits  of  a  partnership  jnitst  of  necessity 
be  muile  liable  to  the  loxses  ('i). 

He  who  lends  his  name  as  a  partner  becomes.^  as  ayainst  all  the 
rest  of  the  world,  a  partner. 

Tins  action  of  assumpsit  for  goods  sold  and  delivered,  work 
and  lalxtur  done,  &C.,  was  tried  at  Guildhall,  l)t'fore  the  Lord 
Chief  .lustiee,  when  a  verdict  was  found  for  the  plaintifT,  sul> 
ject  to  the  opinion  of  the  Court  on  a  case  which  stated  — 

That  on  the  24th  February,  1790,  the  defendants  duly  exe- 
cuted articles  of  agreement,  as  follows:  —  "Articles  of  agree- 
ment indented,  made,  concluded,  and  agreed  upon  this  twenty- 
fourth  day  of  Febiiiary,  in  the  year  of  our  Lord  one  thousand 
seven  hundred  and  ninety,  l3etween  Erasmus  Carver  and  William 
Carver,  of  Go.ywrt,  in  the  county  of  Southampton,  merchants, 
of  the  one  part,  and  Archibald  Giesler  of  Plymouth,  in  the 
couuty  of  Devon,  merchant,  of  the  other  part.  Whereas  the 
said  Archibald  Giesler,  some  time  since,  received  appointments 

(a)   [This  position  is  now  untenable,  see  Wheatcroft  v.  Hickman,  post,  in 

notil.'] 

1178 


WAUGH   V.    CARVER.  1179 

from  several  of  the  principal  ship-owners,  merchants,  and  in- 
surers in  Holland,  and  other  places,  to  act  as  their  agent  in  the 
several    counties    of    Hanipaliire,    Devonshire ,    Dorsetshire,    and 
Cornwall;   and  whereas  the  said  Erasmus  Carver  and  William 
Carver  have  for  a  great  number  of  years  been  established  at 
G-osport  aforesaid,  in  the  agency  line,  under  the  firm  of  Eras- 
mus Carver  and  Son,  and  hold  sundry  appointments  as  consuls 
and  agents  for  the  Danish  and  other  foreign  nations,  and  also 
have  very  extensive  connections  in  Holland  and  other  parts  of 
Europe  ;  and  whereas  it  is  deemed  for  their  mutual  interest  and 
the  advantage  of  their  friends,  that  the  said  Archibald  Giesler 
should  remove  from  Plymouth,  and  establish  himself  at   Goives, 
in  the  Isle  of  Wight :  and  the  said  Erasmus  Carver  and  Wil- 
liam Carver,  and  the  said  Archibald  Giesler,  have  agreed  that 
each  should  allow  to  the  other  certain  portions  of  each  other's 
commissions  and  profits,  in  manner  hereafter  more  particularly 
mentioned  and  expressed.    Now,  therefore,  this  agreement  wit- 
nesseth,  and  the  said  Archibald  Giesler  doth  hereby  for  himself, 
his  executors  and  administrators,  covenant,  promise,  and  agree, 
to  and  with  the  said  Erasmus  Carver  and  William  Carver,  their 
executors  and  assigns,  in   manner  following  (that  is  to  say), 
that  the  said  Archibald  Giesler  shall  and  will,  when  required 
so  to  do  by  the  said  Erasmus  Carver  and  William  Carver,  re- 
move from  Plymouth  and  establish  himself  at  Coives  aforesaid, 
for  the   purpose  of  carrying  on  a  house  there  in  the   agency 
line,  on  his  account ;  but  in  consequence  of  the  assistance  and 
recommendations  which    the    said    Erasmus    Carver   and  Wil- 
liam Carver  have  agreed  to  render  in  support  of  the  said  house 
at  Co'wes,  the  said  Archibald  Giesler  doth  covenant,  promise,  and 
agree  to  and  with  the  said  Erasmus  Carver  and  William  Car- 
ver, that  the  said  Archibald  Giesler,  his  executors,  administrators, 
and  assigns,  shall  and  will  well  and  truly  pay  or  allow,  or  cause 
to  be  paid  or  allowed,  to  the  said  Erasmus  Carver  and  William 
Carver,  their   executors,    administrators,    or   assigns,   one   full 
moiety  or  half  part  of  the  commission  agency  to  be  received  on 
all  such  ships  or  vessels  as  may  arrive  or  put  into  the  port  at 
Gowes,  or  remain  in  the  road  to  the  westward  thereof  within  the 
Needles,  of  which  the  said  Archibald  Giesler  may  procure  the 
address,  and  likewise  one  full  moiety  or  half  part  of  the  dis- 
count on  the  bills  of  the  several  tradesmen  employed  in  the 
repairs  of  such  ships  or  vessels ;  and  as  there  have  been,  for  a 


IISO  WAUGH    V.    (;Ai:VKIt. 

coiisi(k'riil)lu  time  past,  very  ^'eiieral  coinplaiiits  iiuule  abroad  of 
the  inalpraetices  and  impositions  tliat  liave  prevailed  at  Cou'en 
aforesaid,  and  it  being  a  principal  object  of  the  said  Erasmus 
Carver  and  William  Carver  to  c-onnteract  and  prevent  sucli, 
the  said  Archibald  (Jiesler  d(»th  further  covenant,  promise, 
and  agree  to  and  witii  the  said  Erasmus  Carver  and  William 
Carver,  that  he  the  said  Archibald  Oicslcr  shall  and  will  use 
his  utmost  diligence  and  endeavours  to  prevent  ships  or  vessels 
arriving  at  the  east  end  of  the  J-slr  <>/  Wliflit,  from  being  carrieil 
past  the  port  of  PortHttwuth  to  that  of  Cowvx  ;  and  also  to  in- 
duce the  mariners  or  commanders  of  such  ships  or  vessels  as 
may  come  in  at  the  west  end  of  the  island  through  the  Needles^ 
whenever  it  is  piacticable  and  advisable,  to  proceed  to  Ports- 
month,  and  there  put  themselves  uniler  the  direction  of  the  said 
Erasmus  Carver  and  William  Carver,  and  that  he  will  consult 
and  advise  witli  the  said  Erasmus  Carver  and  William  Carver 
on  and  respecting  the  affairs  of  such  ships  or  vessels  as  may 
put  into  and  remain  at  the  port  of  Cuiiu-x  under  the  care  of 
the  said  Archibald  Giesler,  and  pursue  suih  measures  as  may 
appear  to  the  said  Erasmus  Carver  and  William  Carver  for  the 
interest  of  the  concerned.  And  whereas  one  of  the  causes  of 
complaint  before  mentioned  is  the  very  heavy  charge  made  at 
Coives  for  the  use  of  warehouses  for  depositing  the  cargoes  of 
ships  or  vessels,  the  said  Archibald  (iiesler  doth  also  covenant, 
promise,  and  agree  to  and  with  the  said  Erasmus  Carver  and 
William  Carver,  that  they  the  said  Erasmus  Carver  and  William 
Carver  shall  be  at  full  liberty  to  engage  warehouses  at  Coices 
aforesaid,  on  such  terms  and  in  such  manner  as  they  may  think 
proper,  in  which  the  said  Archibald  Giesler  shall  not  upon  any 
grounds  or  pretence  whatsoever  either  directly  or  indirectly 
interfere.  And  the  said  Erasmns  Carver  and  William  Carver, 
for  the  considerations  hereinbefore  mentioned,  do  hereby  cove- 
nant, promise,  and  agree  to  and  with  the  said  Archibald  Giesler, 
his  executors  and  administrators,  that  they  the  said  Erasmus 
Carver  and  William  Carver  shall  and  will  well  and  truly  pay 
or  allow,  or  cause  to  be  paid  or  allowed,  to  the  said  Archibald 
Giesler,  his  executors,  administrators,  or  assigns,  three  fifth 
parts  or  shares  of  the  commission  or  agency  to  be  received  by 
the  said  Erasmus  Carver  and  William  Carver,  on  account  of  all 
such  ships  or  vessels,  the  commanders  whereof  may,  in  conse- 
quence of  the   endeavours,    interference,    or   influence  of   the 


WAUGH    Y.    CARVER.  llSl* 

said  Archibald  Giesler,  proceed  from  Coives  to  Portsmouth.,  and 
there  put  themselves  under  the  direction  of  the  said  Erasmus 
Carver  and  William  Carver,  in  manner  hereinbefore  mentioned, 
and  likewise  one  and  one-half  per  cent,  on  amount  of  the  bills 
of  the  several  tradesmen  employed  in  the  repairs  of  such  ships 
or  vessels,  together  with  one-fourth  part  of  such  sum  or  sums 
as  may  be  charged  or  brought  into  account  for  warehouse  rent, 
on  the  cargoes  of  such  ships  or  vessels  respectively ;  and  also 
one-sixth  part  of  such  sum  or  sums  as  may  be  charged  or 
brought  into  account  for  warehouse  rent  on  the  cargoes  of  such 
ships  or  vessels  as  may  be  landed  at  Cowes  aforesaid :  and  also 
that  they  the  said  Erasmus  Carver  and  William  Carver,  their 
executors,  administrators,  and  assigns,  shall  and  will  well  and 
truly  pay  or  allow,  or  cause  to  be  paid  or  allowed  unto  the  said 
Archibald  Giesler,  his  executors,  adininistrators,  or  assigns,  one- 
fourth  part  or  share  of  the  commission  or  agency  to  be  received 
by  the  said  Erasmus  Carver  and  William  Carver,  on  account  of 
all  such  ships  or  vessels  that  may  arrive  or  put  into  the  port  of 
Portsmouth,  or  remain  in  the  limits  thereof,  under  the  care  and 
direction  of  the  said  Erasmus  Carver  and  William  Carver: 
and  likewise  one-half  per  cent,  on  amount  of  the  bills  of  the 
several  tradesmen  employed  in  the  repairs  of  such  ships  or 
vessels :  and  in  order  to  prevent  any  misunderstanding  or  dis- 
putes, with  respect  to  the  commission  and  discount  to  be  paid 
and  divided  between  the  said  Erasmus  Carver  and  William 
Carver,  and  the  said  Archibald  Giesler,  and  for  the  better 
ascertaining  thereof,  it  is  hereby  mutually  covenanted,  de- 
clared, and  agreed  upon  between  the  said  Erasmus  Carver  and 
William  Carver,  and  the  said  Archibald  Giesler,  that  one-fifth 
part  of  the  commission  or  agency  on  each  ship  shall  and  may 
be  first  retained  by  the  party  under  whose  care  such  ship 
or  vessel  shall  be,  as  a  full  compensation  for  clerks,  boat  hire 
and  all  the  other  incidental  charges  and  expenses  in  regard  of 
such  ships  or  vessels  respectively;  after  which  deduction,  the 
then  remaining  balance  of  such  commissions  or  agency  shall  be 
divided  between  the  said  Erasmus  Carver  and  William  Carver, 
and  the  said  Archibald  Giesler,  in  the  proportions  hereinbefore 
mentioned ;  and  that  such  commission  or  agency  shall  be  ascer- 
tained by  one  party's  producing  to  the  other  true  and  authentic 
copies  of  the  general  accounts  of  each  ship  or  vessel  under  their 
respective  care  and  direction,  signed  by  the  several  masters  of 


1182  WAUGII    V.    f'Ai:VEK. 

siicli  ships  or  vessels  respectively,  iiiid  iKitarially  authenti- 
cated. And  it  is  heiel)y  fuitlier  covenanted,  (h'llarcd,  and 
agreed  upon  by  and  hetwccn  tlie  said  I^rasmus  Carver  and 
William  Carver,  and  the  said  AiciiihaM  (iicslrr,  that  tins 
present  contract  and  agreement  shall  commence  and  take  elTcct 
from  the  date  hereof,  and  shall  continue  in  full  force  and  virtue 
for  the  term  of  seven  years,  during  the  whole  of  whiih  sai<l 
teim  the  said  jjarties,  or  either  of  them,  shall  not  upon  any 
grounds  or  j)retence  whatsoever,  directly  or  indirectly,  enter 
into,  or  form  any  connection,  contract,  or  agreement  with  any 
other  house  or  houses,  or  with  any  person  or  persons  whatso- 
ever, concerning  the  i-ommission  or  agency  of  ships  or  vessels 
that  may  during  the  said  term  put  into  or  arrive  at  either  of 
the  before-mentioned  ports  of  Portsmouth  or  Coives,  nor  shall 
the  said  Archibald  Giesler  at  tlie  ex[>iration  of  the  sai<l  term  of 
seven  years,  directly  or  indirectly,  establish  himself  at  Gos- 
port  or  Portsmouth,  nor  on  any  grounds  or  pretences  whatso- 
ever, enter  into  or  form  any  connection,  contract,  or  agreement 
with  any  house  or  houses,  or  person  or  persons  whomsoever  at 
GoHport  or  Portsmouth  aforesaid.  And  also  that  they  the  said 
Erasmus  Carver  and  William  Carver,  and  the  said  Archibald 
Giesler,  shall  and  will  meet  at  Gosport  on  or  about  the  first 
day  of  September  yearl}',  for  the  purpose  of  examining  and 
settling  their  accounts,  concerning  the  said  commission  lousi- 
ness, and  that  such  party  from  whom  the  balance  shall  then 
appear  to  be  due,  shall  and  will  well  and  truly  pay  or  secure 
the  same  unto  the  other  i)arty,  his  executors,  administrators,  or 
assigns,  on  or  before  the  twenty-ninth  day  of  the  said  month  of 
September  yearly.  And  it  is  hereby  likewise  covenanted,  de- 
clared, and  agreed,  by  and  between  the  said  Erasmus  Carver 
and  William  Carver,  and  the  said  Archibald  Giesler,  that  each 
party  shall  separately  run  the  risk  of,  and  sustain  all  such  loss 
and  losses  as  may  happen  on  the  advance  of  moneys  in  respect 
of  any  ships  or  vessels  under  the  immediate  care  of  either  of 
the  said  parties  respectively ;  it  being  the  true  intent  and 
meaning  of  these  presents,  and  of  the  parties  hereunto,  that 
neither  of  them,  the  said  Erasmus  Carver  and  William  Carver 
and  Archibald  Giesler,  shall  at  any  time  or  times,  during  the 
continuance  of  this  agreement,  be  in  any  wise  injured,  pre- 
judiced, or  affected  by  an}'  loss  or  losses  that  may  happen  to 
the  other  of  them,  or  that  either  of  them  shall  in  anv  decfree  be 


WAUGH    V.    CARVER.  1183 

answerable  or  accountable  for  the  acts,  deeds,  or  receipts  of  tlie 
other  of  them,  but  that  each  of  them,  the  said  Erasmus  Carver 
and  William  Carver  and  Archibald  Giesler,  shall  in  his  own 
person  and  with  his  own  goods  and  effects  respectively  be 
answerable  and  accountable  for  his  own  losses,  acts,  deeds,  and 
receipts.  Provided  always  nevertheless,  and  it  is  hereby  de- 
clared and  agreed  to  be  the  true  intent  and  meaning  of  these 
presents,  and  the  parties  hereunto,  that  in  case  the  houses  of 
either  of  them  the  said  Erasmus  Carver  and  William  Carver 
and  Archibald  Giesler  shall  dissolve  or  cease  to  exist,  from  any 
circumstance  whatsoever,  before  the  expiration  of  the  said  term 
of  seven  years,  that  then  this  present  agreement,  and  every 
clause,  sentence,  and  thing  herein  contained,  shall  from  thence 
cease,  determine,  and  be  absolutely  void,  to  all  intents  and  pur- 
poses whatsoever  ;  but  without  prejudice  nevertheless  to  the  set- 
tlement of  any  accounts  that  may  then  remain  open  and  unliqui- 
dated between  the  said  Erasmus  Carver  and  William  Carver, 
and  the  said  Archibald  Giesler,  which  shall  be  settled  and 
adjusted  within  the  space  of  six  months  next  after  the  dissolu- 
tion of  the  houses  of  either  of  them  the  said  Erasmus  Carver 
and  William  Carver  and  Archibald  Giesler ;  and  also  that  at 
the  expiration  of  the  said  term  of  seven  years,  it  shall  be  at  the 
option  of  the  said  Erasmus  Carver  and  William  Carver  to 
renew  this  agreement  for  the  further  term  of  seven  years,  under 
and  subject  to  the  several  clauses,  covenants,  and  agreements 
hereinbefore  particularly  mentioned  and  set  forth,  which  the 
said  Archibald  Giesler  doth  hereby  engage  to  do.  And  it  is 
hereby  further  covenanted,  declared,  and  agreed,  by  and  be- 
tween the  said  Erasmus  Carver  and  William  Carver  and  Arclii- 
bald  Giesler,  that  these  presents  do  not,  nor  shall  be  construed 
to  mean  to  extend  to  such  ships  or  vessels  that  may  come  to 
the  addi-ess  of  either  of  the  said  parties  respectively,  for  the 
purpose  of  loading  or  delivering  any  goods,  wares,  or  merchan- 
dize, it  being  the  true  intent  and  meaning  of  these  presents, 
and  the  parties  hereunto,  that  the  foregoing  articles  shall  not, 
nor  shall  be  construed  to  bear  reference  to  their  particular  or 
separate  mercantile  concerns  or  connections ;  and  that  in  case 
any  disputes  or  misunderstanding  shall  hereafter  arise  between 
them,  respecting  the  true  intent  and  meaning  of  any  of  the 
articles  or  covenants  hereinbefore  contained,  that  then  such 
disputes  or  misunderstandings  shall  be  submitted  to  the  arbitra- 


1184  WAUOH     V.    CAUVEU. 

tion  of  two  iiuliffeit'iit  persons,  one  to  he  cliosen  by  the  said 
Krasmns  Carver  and  William  Carver,  and  the  other  by  the  said 
Arehihald  (iiesler;  and  in  ease  sneh  two  persons  eannot  agree 
about  the  same,  then  they  are  hereby  emjjowered  to  name  some 
third  person  as  an  umpire;  and  it  is  hereby  deelared  and 
agreed,  that  the  award  and  determination  of  the  said  referees 
and  umpire,  (u-  any  two  of  them,  concerning  the  object  in 
dispute,  shall  be  made  and  settled  within  six  calendar  months 
next  after  such  differences  shall  have  arisen  between  the  said 
parties,  and  shall  be  alisolutely  liual,  comdusive,  and  binding. 
And  l;istlv,  for  ihi-  true  i)erformance  of  all  and  every  the  cove- 
nants, articles,  and  agreements  hereinbefore  mentioned,  they 
the  said  Erasmus  Carver  and  William  Carver  and  Archibald 
Giesler  do  hereby  bind  themselves,  their  heirs,  executors,  and 
administrators,  each  to  the  other,  in  the  penalty  of  five  thou- 
sand [lounds  of  lawful  money  of  irnnf  Brifnin,  tirndy  l)y  these 
presents." 

In  pursuance  of  these  articles,  Ciiesler  removed  from  Pfi/- 
tnouth^  and  settled  at  Cowetf,  where  he  carried  on  the  business  of 
a  ship-agent,  in  his  own  name,  and  contracted  for  the  goods, 
&c.,  wliicli  were  the  subject  of  the  action. 

And  the  (piestion  was,  whether  the  defendants  were  partners 
on  the  true  cf)nstruction  of  the  article? 

This  was  argued  in  Trinity  term  last,  by  Clayton^  Serjt.,  for 
the  j)laintiff,  and  Jioi>hi\  Serjt.,  for  the  defendants  ;  and  a  second 
time  in  the  present  term  by  Le  Blaru;  Serjt.,  for  the  plaintift", 
and  Ldirrciice,  Serjt.,  for  the  defendants.  The  substance  of  the 
arguments  for  the  plaintifT  was  as  follows:  — 

The  question  in  this  case  is.  Whether  the  articles  of  agree- 
ment entered  into  by  the  defendants  constituted  a  partnership 
between  them  ?  That  such  was  the  effect  of  these  articles  will 
appear  by  considering  the  general  rules  of  law  resjjecting  part- 
ners, and  the  particular  circumstances  in  the  case.  The  law  is, 
that  wherever  there  is  a  participation  of  profits  a  partnership  is 
created;  though  there  is  a  difference  between  a  participation  of 
profits  and  a  certain  annual  payment.  Thus  in  Grace  v.  Smith, 
2  Black.  998,  a  retiring  partner  lent  the  other  who  continued 
in  business  a  certain  sum  of  money  at  5/.  per  cent.,  and  Avas  to 
have  an  annuit}'  of  300/.  a  year  for  seven  years,  the  whole  of 
which  was  secured  by  the  bond  of  the  partner  who  remained  in 
trade.     This  was  holden  not  to  make  the  lender  a  partner;  but 


WAUGH    V.    CARVEK.  1185 

Chief  Justice  Be  Grey^  there  said  —  "  The  question  is,  What 
constitutes  a  secret  partner  ?  Every  man  who  has  a  share  of 
the  profits  of  a  trade  ought  also  to  bear  his  share  of  the  loss ; 
and  if  any  one  takes  part  of  the  profits,  he  takes  a  part  of  that 
fund  on  which  the  creditor  of  the  trader  relies  for  his  payment. 
I  think  the  true  criterion  is,  to  inquire  whether  Smith  agreed 
to  share  the  profits  of  the  trade  with  Robinson ;  or  whether  he 
only  relied  on  those  profits  as  a  fund  for  payment?"  And 
Blackstone,  J.,  also  said  —  "  The  true  criterion,  when  money  is 
advanced  to  a  ti'ader,  is  to  consider  whether  the  profit  or  pre- 
mium is  certain  and  defined,  or  casual  and  indefinite,  and  de- 
pending on  the  accidents  of  trade.  In  the  former  case  it  is  a 
loan,  in  the  latter  a  partnership."  In  Bloxam  v.  Pell^  cited  in 
Crrace  v.  Smith,  a  sum  secured  with  interest  on  bond,  and  also 
an  agreement  for  an  annuity  of  200Z.  a  year  for  six  years,  if 
Brooke  so  long  lived,  as  in  lieu  of  the  profits  of  the  trade,  with 
liberty  to  inspect  the  books,  was  held  by  Lord  Mansfield  to  con- 
stitute a  partnership.  In  Jfom^e  v.  Dawes,  Dougl.  371,  8vo,  a 
number  of  persons  unknown  to  each  other,  and  without  any 
communication  together,  employed  the  same  broker  to  purchase 
tea  at  a  sale  of  the  East  India  Company.  The  broker  bought 
a  lot,  to  be  divided  among  them  according  to  their  respective 
orders,  and  pledged  the  warrants  with  the  plaintiff,  for  more 
money  than  they  turned  out  to  be  worth ;  on  the  broker  becom- 
ing a  bankru2:)t,  the  plaintiff  sued  two  of  the  purchasers,  con- 
sidering them  all  as  secret  partners,  and  liable  for  the  whole. 
But  the  Court  held  that  there  was  no  partnership,  and  Lord 
Mansfield  said  —  "There  is  no  undertaking  by  one  to  advance 
money  for  another,  nor  any  agreement  to  share  with  one  another 
the  profit  or  loss.  In  Coope  v.  E'jre,  1  H.  Bl.  p.  37,  one  of  the 
defendants  bought  a  quantity  of  oil  of  the  plaintiffs,  and  the 
other  defendants  had  agreed,  before  the  purchase,  each  to  take 
certain  shares  of  the  quantity  bought;  but,  when  bought,  each 
to  do  with  his  own  share  as  he  j^leased ;  they  were  holden  not 
to  be  partners,  for  there  was  no  share  of  profit  or  loss.  In 
Youmj  V.  Axtell,  and  another  («),  which  was  an  action  to  re- 
cover 600/.  and  upwards  for  coals  sold  and  delivered  by  the 
plaintiff,  a  coal-merchant,  an  agreement  between  the  defendants 
was  given  in  evidence,  stating  that  the  defendant  Mrs.  Axtell 

((7)  At  i4uUdhrdl  sittings  after  llil.,  24  G.  3,  cor.  Lord  3lansfieM,  cited  by 
Mr.  Serjt.  Le  Blanc,  from  a  MS.  note. 


1186  WAUGH    V.    CAKVHIl. 

hiul  lately  caniLMl  on  the  coal  trade,  and  thai  the  other  defend- 
ant did  the  same:  that  Mrs.  Axtell  was  to  hrhit^  what  custom- 
ers she  could  into  the  business,  and  that  the  other  wits  to  pay 
her  an  annuity,  and  also  '2s.  for  every  chaldron  that  should  Ihj 
sold  to  those  persons  who  had  been  her  customers,  or  were  of 
her  recommending.  The  plaintiff  also  proved,  that  bills  were 
made  out  for  jj^oods  sold  to  her  customers  in  their  joint  names; 
and  the  question  was,  whether  Mis.  Axtell  was  liable  for  the 
debt?  Lord  Mansfield  said,  "he  slionld  havi'  rather  thought  on 
the  agreement  only,  that  Mrs.  Axtell  would  l)e  liable,  not  on 
account  of  the  annuity,  but  the  other  payment,  as  that  would 
be  increased  in  j)roportion  as  she  increased  the  business.  How- 
ever, as  slu-  suft'creil  her  iiainc  to  Ik-  used  in  the  business,  and 
held  heiself  out  as  a  paitner,  she  was  certainly  liable,  though 
the  plaintilT  did  not  at  the  time  of  dealing  know  that  she  was  a 
partner,  or. that  her  name  was  used  "  (</).  And  the  jury  ai-cord- 
ingly  found  a  verdict  for  the  plaintitV. 

It  a[t[)earing,  therefore,  from  these  authorities,  that  a  ])arti- 
cipation  of  profits  is  sullicient  to  constitute  a  partnership,  it 
remains  to  be  seen  whether  the  agreement  in  (|uestion  did  not 
establish  such  a  participation  of  the  profits  of  the  agency 
business  between  the  defendants  as  to  make  them  lialile  as 
partners.  In  the  first  place,  it  is  stated  in  ihe  recital,  that  the 
Carvers  and  Giesler  had  agreed  to  allow  each  other  certain  pro- 
portions of  each  other's  connui.ssions  and  profits.  It  is  then 
agreed  that  (iiesler  should,  when  re([uired  by  the  Carvers,  re- 
move from  Pli/niouth  to  Cowes^  and  there  establish  a  house : 
and  in  consequence  of  the  Carvers'  recommendation  and  assist- 
ance to  support  the  house,  Giesler  is  to  allow  them  a  moiety  of 
the  commission  on  ships  putting  into  the  port  of  Coives,  or 
remaining  in  the  road  to  the  westward,  addressed  to  him,  and  a 
moiety  of  the  discount  on  the  tradesmen's  bills  employed  on 
such  ships :  he  also  covenants  to  advise  with  the  Carvers  and 
pursue  such  measures  as  may  appear  to  them  to  be  for  the  inter- 
est of  the  concern.  On  the  other  hajid,  the  Carvers  agree  to 
pay  Giesler  three-fifths  of  the  agency  of  all  vessels  whicli  shall 
come  from  Coupes  to  Portsmouth,  and  put  themselves  under  the 
direction  of  the  Carvers,  by  the  recommendation  of  (xiesler, 
one-half  per  cent,  on  tradesmen's  bills,  and  certain  proportions 

(rt)  Sedqxicere;  vide  the  expressions  of  Park,  J.,  in  Dickinson  v.  Valpy,  10 
B.  &  C.  140. 


WAUGH    V.    CAKVER.  ,  1187 

of  warehouse  rent  and  agency.  Eacli  party  is  likewise  to  pro- 
duce true  copies  of  the  accounts  of  tlie  ships  to  the  other,  and 
neither  is  to  form  any  other  connection  in  tlie  agency  business 
during  the  period  agreed  upon ;  and  they  are  to  meet  once  a 
year  at  Gosport  to  settle  their  mutual  accounts,  and  pay  over 
the  balance.  Now  it  was  not  possible  to  express  in  clearer 
terms  an  agreement  to  participate  in  the  profits  of  the  business 
of  ship-agents,  and  to  establish  a  joint  concern  between  the  two 
houses.  It  ma};'  be  objected,  that  there  is  a  proviso,  that  neither 
of  the  parties  shall  Ije  answerable  for  the  losses  of  the  other ; 
but  this  would  certainly  be  not  binding  on  the  creditors.  Lord 
Craven  v.  Widdoivs,  2  Chan.  Cas.  139 ;  Heath  v.  Percival,  1  P. 
Wms.  682 ;  Mich  v.  Coe,  Cowp.  636.  An  agreement  to  share 
profits  alone,  cannot  prevent  the  legal  consequence  of  also  shar- 
ing losses,  for  the  benefit  of  creditors.  Perhaps  it  may  be  diffi- 
cult to  find  an  exact  definition  of  a  partnership,  but  it  has  been 
always  holden,  that  where  there  is  a  share  of  profits,  there  shall 
also  be  a  share  of  losses ;  for  whoever  takes  a  part  of  the  capi- 
tal, or  of  the  profits  upon  it,  takes  a  part  of  that  fund  to  which 
the  j)ublic  have  given  credit,  and  to  which  they  look  for  pay- 
ment. If  there  be  no  original  capital,  the  profits  of  the  trade 
are  themselves  a  capital,  to  which  the  creditor  is  to  have 
recourse.  Thus,  if  in  the  year  1791  the  profits  were  lOOZ., 
and  in  the  year  1792  there  was  a  loss  of  IQL,  of  course  the  prof- 
its of  the  preceding  year  would  be  the  stock  to  which  the  cred- 
itor would  resort  for  the  payment  of  the  debts  Avhich  consti- 
tuted part  of  the  loss  of  the  succeeding  year.  Indeed  it  is  by 
no  means  necessary  that,  to  constitute  a  partnership,  the  parties 
should  advance  money  by  way  of  capital ;  many  joint  trades 
are  carried  on  without  any  such  advance :  there  is  therefore  no 
ground  to  object,  in  the  present  instance,  that  neither  party 
brought  any  money  into  a  common  stock,  in  order  to  carry 
on  their  business. 

On  behalf  of  the  defendants,  the  arguments  were  as  follows : 
The  question  is.  Whether  this  agreement  creates  such  a  partner- 
ship as  to  make  all  liable  to  the  debts  of  each?  A  partnersliip 
may  be  defined  to  be,  "the  relation  of  persons  agreeing  to  join 
stock  or  labor,  and  to  divide  the  profits.''  Thus  Puffen(h)rf 
described  it,  "  Contractus  societatis  est,  quo  duo  pluresve  inter  ae 
pecuniam,  res,  aut  operas  cotifenmt,  eo  sane,  ut  quod  inde  redit 
lucri  inter  singulos  pro  ratd  dividatur,'^  lib.  5,  cap.  8.     Partners, 


1188  WAi(;ii   V.  cAKVKi:. 

therefore,  can  only  l)e  liable  on  the  ^nound  ot"  their  heini,'  joint 
contractors,  or  as  piu  takiiit,^  of  a  joint  stock.  In  many  cases  in 
which  questions  of  this  sort  iiave  arisen,  and  the  persons  h.ive 
been  holden  to  l)e  partners,  goods  had  been  sold,  and  a  common 
fund  established,  to  which  the  creditor  mi<,dit  look  for  payment; 
and  there  it  was  highly  reasonable  to  hold,  that  if  many  persons 
purchase  goods  on  their  joint  account,  though  in  the  name  of 
one  only,  and  are  to  share  the  protits  of  a  re-sale,  they  shall  be 
considered  as  joint  contractors,  and  therefore  liable  as  })aitners. 
So  if  a  joint  stock  or  capital  or  joint  labor  l>e  employed,  eaeh 
party  is  interested  in  the  thing  on  wiiieh  it  is  employed,  and  in 
the  profits  resulting  fri>m  it.  But  in  the  present  case,  tliere  is 
no  joint  contiact  for  tlie  purchasing  of  goods,  nor  any  joint 
stock  or  laboi',  but  the  parties  are  to  share,  in  certain  propor- 
tions, the  protits  of  their  separate  stock,  and  separate  labor: 
there  was  no  house  of  trade  or  merchandise  established,  but 
two  distinct  houses,  for  the  })uri)ose  of  carr3ing  on  tlie  business 
of  ship  agency,  on  two  distinct  ai-counts.  The  protits  are  not 
a  capital,  unless  cariied  on  as  a  cai)ital,  and  not  divided.  Ship 
agents  are  not  traders,  but  their  employment  is  merely  to  man- 
age the  concerns  of  such  ships  in  port  as  are  addressed  to  them. 
Su[)pose  two  lisliermen  were  to  agree  to  share  the  protits  of  the 
tish  that  each  might  catch,  one  would  not  be  liable  for  mending 
the  nets  of  the  other.  So  if  two  watermen  agree  to  divide  their 
fares,  neither  would  be  answerable  for  repairing  the  other's 
boat.  Xoi-  would  any  artificers  who  entered  into  similar  agree- 
ments to  share  the  produce  of  their  separate  labor,  be  obliged 
to  pay  for  each  other's  tools  or  materials.  And  this  is  not  an 
agreement  as  to  the  agency  of  all  ships  with  which  the  parties 
were  concerned,  for  such  as  came  to  the  particular  address  of 
one  were  to  be  the  sole  profit  of  that  one.  It  was  indeed 
clearly  the  intent  of  the  parties  to  the  agreement,  and  is  so 
expressed,  that  neither  should  be  answerable  for  the  losses,  acts, 
or  deeds  of  the  other,  and  that  the  agreement  should  not 
extend  to  their  separate  mercantile  concerns.  It  must  there- 
fore be  a  strong  and  invariable  rule  of  law  that  can  make  the 
parties  to  the  agreement  responsible  for  eaeh  other  against  their 
express  intent.  But  all  cases  of  partnership  which  have  been 
hitherto  decided  have  proceeded  on  one  or  other  of  the  follow- 
ing grounds :  1.  Either  there  has  been  an  avowed  authority 
given  to  one  party  to  contract  for  the  rest.    2.  Or  there  has  been 


WAUGH    V.    CARVER.  1189 

a  joint  capital  or  stock.  3.  Or,  in  case  of  dormant  partners, 
there  has  been  an  appearance  of  fraud  in  hokling  out  false 
colors  to  the  world.  Now  the  present  case  is  not  within  either 
of  those  principles :  because  there  was  no  authority  given  to 
either  party  to  contract  for  the  others ;  nor  was  there  any 
joint  capital  or  stock ;  nor  were  the  public  deceived  by  any 
false  credit ;  no  fraud  is  stated  or  attempted  to  be  proved,  nor 
can  the  court  collect  from  the  articles  that  any  was  intended : 
it  was  merely  a  purchase  of  Giesler's  profits  by  giving  him  a 
share  of  those  of  the  Carvers,  to  prevent  a  competition  between 
them. 

Lord  Chief  Justice  Eyre.  —  This  case  has  been  extremely 
well  arofued,  and  the  discussion  of  it  has  enabled  me  to  make 
up  my  mind,  and  remove  the  only  difficulty  I  felt,  which  was, 
whether,  by  construing  this  to  be  a  partnership,  we  should  not 
determine,  that  if  there  was  an  annuity  granted  out  of  a  bank- 
ing-house to  the  widow,  for  instance,  of  a  deceased  partner,  it 
Avould  make  her  liable  to  the  debts  of  the  house,  and  involve 
her  in  a  bankruptcy  ?  But  I  think  this  case  will  not  lead  to  that 
consequence  (a). 

The  definition  of  a  partnership  cited  from  Puffendorf  is  good 
as  between  the  parties  themselves,  but  not  with  respect  to  the 
world  at  large.  If  the  question  Avere  between  A.  and  B., 
whether  they  were  partners  or  not,  it  would  be  very  well  to 
inquire,  whether  they  had  contributed,  and  in  what  proportion, 
stock  or  labour,  and  on  what  agreements  they  were  to  divide 
the  profits  of  that  contribution.  But  in  all  these  cases  a  very 
different  question  arises,  in  which  the  definition  is  of  little 
service.  The  question  is  generally,  not  between  the  parties,  as 
to  what  shares  they  shall  divide,  but  respecting  creditors,  claim- 
ing a  satisfaction  out  of  the  funds  of  a  particular  house,  who 
shall  be  deemed  liable  in  regard  to  these  funds.  Now  a  case 
may  be  stated,  in  which  it  is  the  clear  sense  of  the  parties  to 
the  contract  that  they  shall  not  be  partners ;  that  A.  is  to 
contribute  neither  labour  nor  money,  and,  to  go  still  farther, 
not  to  receive  any  profits.  But  if  he  will  lend  his  name  as  a 
partner,  he  becomes,  as  against  all  the  rest  of  the  world,  a 
partner,  not  upon  the  ground  of  the  real  transaction  between 
them,  but  upon  principles  of  general  policy,  to  prevent  the 
frauds  to    which   creditors   would   be    liable  if   they   were    to 

(a)   [But  see  now  the  28  &  29  Vict.  c.  80,  s.  •i,post,  in  nota.'\ 


1190  WAl(;U    V.    CAKVKK. 

hiippose  that  tliey  lent  their  money  upon  tlie  apparent  credit  of 
three  or  four  i)ersons  when  in  fact  they  lent  it  only  to  two  of 
them,  to  wlioni,  without  the  otliers,  they  wouhl  liave  h-iit 
nothing.  The  argument  gone  into,  liowcvti-  proper  for  the  tlis- 
cussion  of  the  (question,  is  irrelevant  to  a  great  part  of  the  ease. 
Whether  these  i)ersons  were  to  inteifere  more  or  less,  with 
tlieir  advice  and  directions,  and  ni;iny  small  parts  of  tiie  agree- 
ment, 1  lay  entirely  out  of  the  ease  ;  heeause  it  is  plain  upon 
construction  of  the  agreement,  if  it  be  construed  hetween  the 
Carvers  and  Giesler,  that  they  were  not,  nor  ever  meant  to  he, 
partners.  They  meant  each  house  to  carry  on  trade  without 
risk  of  each  other,  and  to  be  at  their  own  loss.  Though  there 
was  a  certain  degree  of  control  at  one  house,  it  was  without  an 
idea  that  either  was  to  i)e  involved  in  the  consecpiences  of  the 
failure  of  the  other,  and  without  understanding  themselves 
lesponsible  for  any  circumstances  that  might  happen  to  the 
loss  of  either.  That  was  the  agreement  between  themselves. 
But  the  {[uestion  is,  whether  they  have  not  by  2)arts  of  their 
agreement  constituted  themselves  partners  in  respect  to  other 
persons?  The  case  therefore  is  reduced  to  tlie  single  ])oint, 
whether  the  Carvers  did  not  entitle  themselves,  and  did  not 
mean  to  take  a  moiety  of  the  proiits  of  Giesler's  house,  gener- 
ally and  indetinitely  as  they  should  arise,  at  certain  times 
agreed  upon  for  the  settlement  of  their  accounts.  That  they 
have  so  done,  is  clear  upon  the  face  of  the  agreement :  and 
upt)n  the  authority  of  Grurc  v.  Smith  {a),  he  who  takes  a 
moiety  of  all  the  profits  indetinitely,  shall,  by  operation  of  law, 
be  made  liable  to  losses,  if  losses  arise  :  upon  the  prinei})le  that, 
III/  takinn  a  part  of  the  profitxi,  he  taken  from  the  creditors  a  part 
of  that  fund  ivhich  is  the  proper  security  to  them  for  the  payment 
of  their  debts.  That  was  the  foundation  of  the  decision  in 
Grace  v.  Smith,  and  I  think  it  stands  upon  the  fair  ground  of 
reason  (^d).  I  cannot  agree  that  this  was  a  mere  agency,  in  the 
sense  contended  for  on  the  part  of  the  defendants,  for  there 
\vas  a  risk  of  profit  and  loss :  a  ship-agent  employs  tradesmen 
to  furnish  necessaries  for   the  ship ;    he  contracts  wath  them, 

(a)  2  Black.  998.  Lindley,  L.  .J.)  in  his  valuable  treatise 

(fe)  [But   see   post,    Wheatcroft   v.  on  the  Law  of  Partnership,  pp.  34-40. 

Hickman,  in  nota.     Before  that  de-  The  actual  decision  in  Grace  v.  Smith 

cision,   the    principle    laid   down  in  was  that  the   defendant  was   not  a 

Grace  v.  Smith  was   irapugned  with  partner.] 

much  learning  by  3Ir.  Lindley  (now 


WAUGH   V.    CARVER.  •     1191 

and  is  liable  to  them ;  he  also  makes  out  the  bills  in  such  a  way 
as  to  determine  the  charge  of  commission  to  the  ship-owners. 
With  respect  to  the  commission,  indeed,  he  may  be  considered 
as  a  mere  agent ;  but,  as  to  the  agency  itself,  he  is  as  much  a 
trader  as  any  other  man,  and  there  is  as  much  risk  of  profit  and 
loss  to  the  person  with  whom  he  contracts,  in  the  transactions 
v»dth  him,  as  with  any  other  trader.  It  is  true  that  he  will  gain 
nothing  but  his  discount,  but  that  is  a  profit  in  the  trade,  and 
there  may  be  losses  to  him,  as  well  as  to  the  owners.  If  there- 
fore the  principle  be  true,  that  he  Avho  takes  the  general  profits 
of  a  partnership  must  of  necessity  be  made  liable  to  the  losses, 
in  order  that  he  may  stand  in  a  just  situation  with  regard  to  the 
creditors  of  the  house,  then  this  is  a  case  clear  of  difiiculty. 
For  though,  with  respect  to  each  other  these  persons  were  not 
to  be  considered  as  partners,  yet  they  have  made  themselves 
such,  with  regard  to  their  transactions  with  the  rest  of  tlie 
world.  I  am  therefore  of  opinion  that  there  ought  to  be  judg- 
ment for  the  plaintiff. 

Gould,  J.  — I  am  of  the  same  opinion. 

Heath,  J.  —  I  am  of  the  same  opinion. 

Mooke,  J.,  having  argued  the  case  at  the  bar,  declined  giving 
any  opinion. 

Judgment  for  the  plaintiff  (a). 


Partnership  is  either  actual  or  nominal.  Actual  partnership  takes  place 
wlien  two  or  more  persons  agree  to  combine  property,  or  labour,  or  both,  in 
a  common  undertaking,  sharing  profit  and  loss.  "  I  have  always,"  says 
Tindal,  C.  J.,  in  Green  v.  Beeseley,  2  Bing.  N.  C.  112,  "  understood  the  defini- 
tion of  partnership  to  be  a  mutual  participation  in  profit  and  loss." 

[But  the  question  whether  an  agreement  constitutes  a  partnership  as 
between  the  parties  to  it  giving  them  the  rights  and  liabilities  of  partners, 
inter  se,  is  totally  different  from  the  question  Avhethcr  a  partnership  is  created, 
with  its  incident  liabilities  as  regards  third  persons.  The  distinction  is 
clearly  put  by  Cotton,  L.  J.,  in  Walker  v.  Hirsch,  27  Ch.  D.,  at  p.  467. 

Prima  facie  a  mutual  agreement  to  share  profits  and  losses  in  certain  pro- 
portions may  be  said  to  create  a  partnership  as  between  the  parties  to  it, 
though  it  may  be  questioned  whether  Kay,  J.,  did  not  go  too  far  in  Pawsey  \. 
Armstrong,  18  Ch.  D.  698,  50  L.  J.  Ch.  683,  in  laying  down  that  this  is  the 
inevitable  result  of  such  an  agreement:  see  per  Cotton,  L.  J.,  in  Walker  v. 
Hirsch,  uhi  supra,  where  it  was  held  that  no  partnership  was  created.  The 
court,  however,  will  look  to  the  efiect  of  an  agreement  and  not  the  mere 
wording  of  it,  and  an  agreement  may  constitute  a  partnership,  even  as  between 

(a)  See  Coope  v.  Eyre,  1  H.  Bl.  p.  37,  and  the  note  there. 


1192  WAUGH    V.    CAKVKU. 

tlic  parties  to  it,  notwithstaiidinir  that  it  may  contain  an  express  provision  to 
tlie  contrary,  Moore  v.  Doris,  11  Ch.  I).  2t;i. 

A  fortiori,^  with  respect  to  third  persons,  an  itrltutl  partnership  [niay] 
subsist  where  there  is  a  participation  in  the  prujits,  even  thoiii;ii  the  partici- 
pant may  liave  most  expressly  stipulated  ajrainst  tlie  usual  incidents  to  that 
relation.  (See  liond  v.  Piltnnl,  3  M.  &  W.  H'lT.)  Such  stipulations  [may] 
indeed  hold  j;ood  between  himself  and  his  companions,  but  will  in  no  wise 
diminish  his  liability  to  third  persons. 

[Tiie  principle  on  which  tliis  was  supposed  to  be  founded  was  —  to  use  tlie 
lanijuaj?e  of  the  L.  C.  .1.  in  the  principal  case  —  that  •■  i)y  taivinj^  a  part  of 
tlie  profits,  he  takes  from  the  creditors  a  part  of  that  fund  wliich  is  the 
proper  security  to  tliem  for  payment  of  their  debts."  This  principle.  althouj;h 
some  have  thought  it  inexpetlient  as  a  restraint  upon  the  employment  of 
money  in  commerce,  was  for  a  long  time  upheld ;  but  now  both  the  legisla- 
ture and  the  highest  court  of  appeal  have  pronounced  it  to  be  vicious. 

It  is  now  settled,  that  there  may  be  a  participation  in  profits,  yet  no  |>art- 
nersliip,  even  qnoad  third  persons.  The  real  test  of  the  liability  of  any  one 
to  tliird  parties  as  a  copartner  is,  whether  or  not  the  other  person  or  persons 
conducting  tlie  business  were  his  agents  to  carry  it  on.  This  was  decided  by 
the  unanimous  judgment  of  the  House  of  Lords  in  Wheatrroft  and  (-'or  v. 
Ilirkmnn,  !)  C.  B.  N.  S.  47,  8  II.  of  L.  C.  L'HH,  ;50  L.  .1.  C.  P.  12.1,  overruling 
the  authorities  to  the  contrary,  and  reversing  the  decision  in  the  same  case 
of  the  Common  Pleas,  and  of  the  Excheiiuer  Chand)er ;  in  which  latter  court, 
however,  the  judges  were  divided  in  opinion,  as  also  were  the  judges  who 
delivered  their  opinions  in  the  House  of  Lords. 

The  facts  of  the  case  were  these:  Messrs.  Smith,  who  were  partners  as 
iron-mercluints  at  the  Stanton  Iron  Works,  became  insolvent,  and  a  deed 
of  arrangement  was  executed  between  them  and  their  creditors.  By  this 
deed  Messrs.  Smith  conveyed  all  their  property  to  live  trustees  upon  trust, 
to  continue  and  carry  on,  under  the  name  and  stijle  of  the  Stanton  Iron  Com- 
pany, the  hiiiiiness  theretofore  carried  on  by  the  Messrs.  Smith  in  copartnership. 
The  deed  then  conferred  upon  the  trustees  powers  to  manage  the  works  as 
they  thought  fit,  and  to  renew  leases,  insure,  erect  buildings  and  machinery, 
appoint  managers  and  agents,  enter  into  and  execute  all  contracts  and  instru- 
ments in  carryinfj  on  the  business  (a  provision  clearly  authorizing  the  trustees 
to  make  or  accept  bills  of  exchange),  and  to  divide  the  net  income  of  the  busi- 
ness remaininy,  after  the  abore  purposes  had  been  answered,  amongst  the  cred- 
itors of  Messrs.  Smith,  in  rateable  proportions,  —  provided  that  in  distributing 
such  income,  it  should  be  deemed  the  property  of  Messrs.  Smith;  with  power 
for  the  majority  in  value  of  the  joint  creditors,  at  a  meeting,  to  alter  the 
trusts,  and  make  rules  as  to  the  discontinuance  of  the  business  and  the  man- 
agement of  it,  and  ultimately  after  paying  the  debts  incurred  in  the  l)usiness 
so  carried  on,  to  divide  the  residue  of  the  moneys,  rateably,  amongst  the 
creditors,  with  the  same  provision  that  the  moneys  were  to  be  considered 
the  property  of  Messrs.  Smith.  The  creditors  were  to  receive  the  provisions 
of  the  deed  in  full  discharge  of  their  debts,  and  they  covenanted  not  to  sue. 
The  defendants  were  creditors  of  Messrs.  Smith,  and  they  subscribed  and 
executed  this  deed. 

The  trustees  carried  on  the  business  in  pursuance  of  the  deed,  under  the 
name  of  the  Stanton  Iron  Company,  and  the  plaintiff  Iiaving  sujjplied  the 
company  with  iron  ore,  one  of  the  trustees  accepted  bills  of  exchange  in  the 


WAUGH    V.    CARVER.  1193 

name  of  the  company  for  the  price  of  it.  The  bills  not  havins:  been  paid  at 
maturitjs  the  plaintifl"  sued  the  defendants  as  acceptors. 

The  real  question  was  whether  the  deed  made  the  defendants  partners  with 
the  trustees,  or  what  is  the  same  thing,  agents  to  bind  them  by  tlieir  accept- 
ances on  account  of  the  business,  and  the  Lords  present  (Lords  Campbell,  C, 
Brougham,  CrauAvorth,  Wensleydale,  and  Chelmsford)  unanimously  held 
that  such  agency  was  not  established  by  the  deed  and  that  the  defendants 
were  not  liable. 

"It  is  often,"  obsei'ved  Lord  Cranworth,  "  said,  that  the  tests,  or  one  of 
the  tests,  whether  a  person  not  ostensibly  a  partner  is  nevertheless  in  con- 
templation of  law  a  partner,  is  whether  he  is  entitled  to  j^articipate  in  the 
profits.  This,  no  doul)t,  is  in  general  a  siifficiently  accurate  test;  for  a  right 
to  participate  in  profits  afibrds  cogent,  often  conclusive,  evidence  that  the 
ti-ade  in  which  the  profits  have  been  made  was  carried  on  in  part  for  or  on 
l)ehalf  of  the  person  setting  up  such  a  claim.  But  the  real  ground  of  the 
liability  is,  that  the  trade  has  been  carried  on  by  persons  acting  on  his  behalf. 
When  that  is  the  case,  he  is  liable  to  the  trade  obligations,  and  entitled  to  the 
profits  or  to  a  share  of  them.  It  is  not  strictly  correct  to  say  that  his  right 
to  share  in  the  profits  makes  him  liable  to  the  debts  of  the  trade.  The 
correct  mode  of  stating  the  proposition  is  to  say  that  the  same  thing  that 
entitles  him  to  the  one,  makes  him  liable  to  the  other,  namely,  the  fact  that 
the  trade  has  been  carried  on  in  his  behalf,  i.e.,  that  he  stood  in  the  relation 
of  principal  towards  the  persons  acting  ostensibly  as  the  traders,  by  whom 
the  liabilities  have  been  incurred,  and  under  whose  management  the  profits 
have  been  made.  Taking  this  to  be  the  ground  of  liability  as  a  partner,  it 
seems  to  me  to  follow  that  the  mere  concurrence  of  creditors  in  an  arrange- 
ment under  which  they  permit  their  debtor,  or  trustees  for  their  debtor,  to 
continue  his  trade,  applying  the  profits  in  discharge  of  their  demands,  does 
not  make  them  partners  with  their  debtor  or  the  trustees.  The  debtor  is  still 
the  person  sglely  interested  in  the  profits,  save  only  that  he  has  mortgaged 
them  to  his  creditors.  He  receives  the  benefit  of  the  profits  as  they  accrue, 
though  he  has  precluded  himself  from  applying  them  to  any  other  purpose 
than  the  discharge  of  his  debts.  The  trade  is  not  carried  on  by  or  on  account 
of  the  creditors." 

His  lordship  then  proceeded  to  show  that  Waugh  v.  Carver,  Bond  v.  Pittard, 
supra,  and  Barry  v.  Nesham,  3  C.  B.  641,  applying  to  them  the  test  enunciated 
by  him,  were  correctly  decided. 

"The  law,"  said  Lord  Wensleydale,  "as  to  partnership  is  undoubtedly  a 
l)ranch  of  the  law  of  principal  and  agent ;  and  it  would  tend  to  simplify  and 
make  more  easy  of  solution  the  questions  which  arise  on  this  subject  if  this 
true  principle  were  more  constantly  kept  in  view.  A  man  who  orders 
another  to  carry  on  trade,  whether  in  his  own  name  or  not,  to  buy  and  sell, 
and  to  pay  over  all  the  profits  to  him,  is  undoubtedly  the  principal,  and  the 
person  so  employed  is  the  agent :  and  the  principal  is  liable  for  the  agent's 
contracts  in  the  course  of  his  employment.  So,  if  two  or  more  agree  that 
they  should  carry  on  a  trade  and  share  the  profits,  each  is  a  principal,  and 
each  is  an  agent  for  the  other,  and  each  is  bound  by  the  other's  contracts  in 
carrying  on  the  trade,  as  much  as  a  single  principal  would  be  by  the  act  of 
an  agent,  who  was  to  give  the  whole  of  the  profits  to  his  employer.  Hence 
it  becomes  a  test  of  the  liability  of  one  for  the  contract  of  another,  that  he  is 
to  receive  the  whole  or  a  part  of  the  profits  arising  from  that  contract  by 
virtue  of  the  agreement  made  at  the  time  of  the  eni;)li)yinenl.     I  believe  this 


ir.»4  W  Al  «.H    V.    CAUVKK. 

Is  the  tnif  principle  of  partnershii)  liability.  I'erlmps  the  nmxim,  timt  hf  trho 
tnkfs  thi-  jn-nfit.1  itiiijht  (')  lit'ir  th*-  lnim,  J)ften  statetl  in  tiie  earlier  euses  on  thli* 
Hul)ject —  W'aitijh  v.  Caner,  &c.,  —  \n  only  the  rutntfiufuri-,  not  the  i-anse, 
why  a  man  is  matle  Hal)le  as  a  partner.  Can  we  collect  from  the  trust  deed 
that  each  of  the  subscril)iiiu  creditors  Is  a  partner  with  the  trustees,  and  by 
the  mere  siijnatnre  of  tlie  deed,  runstitutfs  thfin  hin  tnjfnt  for  rnrrtjiny  on  the 
huniiicuHfnr  his  accimnt  and  the  rest  of  the  creditors?  I  think  not.  It  l8 
true  that  l)V  this  deed  the  creditors  will  ;;ain  an  advanta;;e  by  the  trustees 
carryiutc  on  the  tra«le;  for  if  it  is  protltal>le  they  will  ;;ei  their  debts  paUl ; 
but  tliis  is  not  that  siiarin;;  of  |)rollts  which  c«>nstltutes  the  relation  <»f  prin- 
cipal, ai^ent,  and  partner." 

See  furliiiT  Kih/iaic  v.  Jukes,  S  B.  &  S.  H47;  and  Ilnllfn  v.  Sharji,  Cam. 
Scac.  L.  U.  1  C.  r.  «G;  35  L.  J.  C.  1'.  105,  In  which  the  above  rationea  deci- 
di'iuli  were  acted  upon. 

In  the  latter  case  the  opinion  of  the  majority  of  the  Court  of  Exchequer 
rhaint»er.  reversini;  a  jndijnient  of  the  Common  IMeas,  was  a<;alnst  the  lia- 
bility of  a  trustee  under  a  niarriaue  settlement  l)y  which  the  trustet'  was  to 
receiv«'  all  the  proilts  of  the  husband's  business  of  an  unilerwriter,  in  tnist  In 
the  llrst  pla<e  to  pay  himself  an  annuity,  for  which  the  husband  was  liable 
before  the  settlement,  and  afterwanls  for  the  objects  of  the  settlement. 

The  same  rule  was  followed  In  In  v  I'hf  Einjtiith,  A'c,  Inniiraiirr  <\tmjmny, 
1  !I.  &  M.  M5,  where  parth-lpation  In  bonuses  was  held  not  to  make  policy 
holders  liable  as  partners;  and  In  Shnw  v.  Hait,  H»  Ir.  C.  L.  Hep.  357,  where  a 
clerk  who  was  entitled  to  a  fixed  salary,  and  also  to  one-third  of  the  net 
proilts  of  tin-  business,  was  held  not  liable  to  creditors  as  a  partner  In  the 
business. 

.VortAv'.s  V.  liarlmr,  i>(i  W.  K.  ;!s;t,  -Jt;  L.  T.  \.  S.  i;^;.  is  an  exaniple  of  cir- 
cumstances held  to  create  an  auemy  of  this  sort.  The  tlefendant  and  a 
builder  had  made  an  afrreement  by  which  the  latter  was  to  erect  certain 
houses,  providing  the  plan,  v<tc.,  for  which  the  defendant  was  to  sjipply  the 
funds,  which  were  to  be  paid  Into  a  bank  on  their  joint  account,  the  builder 
belnj;  entitled  to  draw  40.>».  per  week  for  personal  expenses  durlnfj  the  erection. 
Both  parlies  were  to  be  jointly  interested  in  the  houses,  which  on  completion 
were  to  l)e  sold,  and  an  account  of  profit  and  loss  was  to  be  taken  between 
the  two.  The  builder  purchased  materials,  &c.,  for  the  houses  on  credit  from 
the  plaiiUitr,  and  in  an  action  by  the  latter  for  the  j)rice.  Brett.  J.,  ruled  that 
the  airncmeut  did  not  constitute  a  partnership  so  as  to  authorise  the  builder 
to  pledge  the  defeiulant's  credit.  Un  a  bill  of  exceptions  the  Court  of  Kx- 
chequer  Chamber,  whilst  adherinj;  to  the  ratio  dpriihndi  in  Voj-  v.  Ilirktnfin, 
that  '•  sharing  in  profits  and  loss  does  not  in  itself  constitute  a  partnership, 
but  only  affords  a  strong  pi'esumption  that  the  one  party  is  made  the  agent 
for  the  other,"  held  that  in  this  case  the  agreement  did  constitute  the  builder 
the  (.iefentlant's  agent,  to  pledge  the  credit  of  the  latter,  and  therefore  that 
the  above  ruling  was  wrong.  See  also  Ex  parte  MacMillmi,  24  L.  T.  N.  S. 
143.  The  case  of  KilJij  v.  Srott,  49  L.  J.  Ch.  383.  is  one  in  which  it  was  held 
that  under  a  somewhat  similar  agreement  a  partnership  liability  ijuoad  third 
persons  was  not  thereby  created. 

The  question  what  constitutes  a  partnership  as  against  third  persons  and 
of  the  Tartnership  Act,  18G5,  which  will  be  presently  noticed,  was  very  fully 
discussed  in  Holme  v.  Hammond.  L.  R.  7  Ex.  218,  41  L.  J.  Ex.  157.  There,  by 
articles  of  partnership,  it  was  provided  that  in  case  of  the  death  of  a  part- 
ner in  an  auctioneer's  business,  the  surviving  partner  should  carry  on  the 


WAUGH    V.    CAKVER.  1195 

partnership,  and  should  pay  the  representatives  of  the  deceased  partner  his 
sliare  of  the  profits  up  to  tlie  end  of  tlie  tenn  for  wliicli  tlie  partnership  was 
created.  At  tlie  decease  of  one  of  tlie  partners  there  was  no  capital  in  the 
business  —  except  the  office  fittings  and  furniture  —  and  his  executors  subse- 
quentl}'  interfered  in  no  way  in  the  business ;  but  they  registered  an  account 
of,  and  were  credited  with  profits  earned  before  and  after  the  death  of  their 
testator.  It  was  sought  to  make  them  chargeable  as  partners  in  the  business, 
and  the  Court  unanimously  held  that  they  were  not  so  liable  under  the  cir- 
cumstances. Martin  and  Bramwell,  B.  B.,  cite  with  the  highest  approval  the 
efl'ect  of  Cox  v.  Hickman,  as  stated  by  O'Bi'ieu,  J.,  in  Shaw  v.  Gait,  as  fol- 
lows :  "  The  pi'inciple  to  be  collected  from  them  appears  to  be  that  a  partner- 
ship even  as  to  third  parties  is  not  constituted  by  the  mere  fact  of  two  or 
more  persons  participating  or  being  interested  in  the  net  profits  of  a  busi- 
ness, but  that  the  existence  of  such  partnership  implies  also  the  existence  of 
such  a  relation  between  those  persons  as  that  each  of  them  is  a  principal  and 
each  an  agent  for  the  others."  Kelly,  C.  B.,  seems  in  his  judgment  to  repudi- 
ate to  some  extent  agency  as  a  test  of  partnership  liability,  and  Cleasby,  B., 
objects  to  the  passage  from  the  judgment  of  O'Brien,  J.,  that  "  in  the  com- 
mon case  of  a  partnership  where  by  the  terms  of  the  partnership  all  the 
capital  is  supplied  by  A.,  and  the  business  is  to  be  carried  on  by  B.  and  C.  in 
their  own  names,  it  being  a  stipulation  in  the  contract  that  A.  shall  not 
appear  in  the  business  or  interfere  in  its  management,  that  he  sliall  neither 
bnj^  nor  sell  nor  draw  nor  accept  bills,  no  one  would  say  that  as  among  them- 
selves there  was  any  agency  of  each  one  for  the  others." 

The  ratio  decidendi  in  Cox  v.  Hickman  was  again  followed  in  Mollwo, 
March  &  Co.  v.  The  Court  of  Wards,  L.  K.  4  P.  C.  419.  This  last  was  a 
strong  case ;  for  the  rajah,  whom  the  appellants  sought  unsuccessfully  to 
charge  as  a  partner,  had  a  considerable  amount  of  control  over  the  business 
as  well  as  a  commission  on  all  net  profits  made  by  the  firm  equal  in  propor- 
tion to  one-fiftli  of  their  amount.  But  the  Court  held  "  that  although  a  right 
to  participate  in  the  profits  of  a  ti'ade  is  a  strong  test  of  partnership,  and 
there  may  be  cases  where  from  such  perception  alone  it  may  as  a  presumption, 
not  of  law,  but  of  fact,  be  inferred ;  yet  tliat  whether  that  relation  does  or 
does  not  exist  must  depend  on  the  real  intention  and  contract  of  tlie  parties. 
.  .  .  Wherever  the  agreement  between  parties  creates  a  relation  which  is  in 
substance  a  partnership,  no  mere  words  or  declarations  to  the  contrary  will 
prevent,  as  regards  third  persons,  the  consequences  flowing  from  the  real 
contract."  In  tliat  case,  however,  their  lordships  thouglit  that  "the  agree- 
ment on  which  it  was  sought  to  establish  the  alleged  partnership  was  in  sub- 
stance founded  on  the  relation  of  creditor  and  debtor,  and  established  no 
other." 

See  also  Ex  parte  Davis,  4  ])e  G.  J.  &  S.  523,  and  Gill  v.  Manchester  Bail- 
way  Compamj,  L.  R.  8  Q.  B.  18G,  191,  where  it  was  held  that  a  working  agree- 
ment between  two  companies,  even  if  it  "  did  not  constitute  an  actual  part- 
nership between  the  respective  companies  as  to  all  the  matters  embraced  by 
it,"  still  did  bring  the  defendants  (one  of  the  companies)  "within  the  rule 
expressed  by  Lord  Cranworth  in  Cux  v.  Hickman  :  '  The  real  ground  of 
liability  is  tliat  the  trade  has  been  carried  on  by  persons  acting  on  his  (the 
defendant's)  behalf.'  " 

Without  attempting  to  draw  any  hard  and  fast  line  to  define  what  circum- 
stances constitute  a  partnersliip  by  agency  (quoad  third  persons,  see  Walker  v. 
Hirsch,  27  Ch.  D.  460,  and  Lindley  on  Partnership,  4th  ed.  pp.  38  et  seq.),  the 


ir.iG  WALLiii  V.  cai:vi:k. 

ctt'i'ct  of  Coy  V.  Hick-man  ns  folUtwcd  by  the  Inter  cases  seems  to  be  tliat  to 
establish  the  lial)ility  of  a  person  as  partner  to  tlu-  creditors  of  a  Jinn  it  i» 
necessary  to  look  at  all  the  circumstances  establishinii  relations  between  him 
and  his  alleged  partners  with  reference  to  the  biisimss;  and  that  the  mere 
receipt  of  protlts  is  only  one  strong  fact,  which  does  not  in  itself  constitute 
the  receiver  a  partner,  but  is  only  evidence  liable  to  be  rebutted  or  supported 
by  the  other  facts  of  the  case.  Sec  Badeley  v.  Consolidated  Hank,  34  Ch.  D. 
6;JG;  Frowdi'  v.  Williamx,  5(1  L.  J.  Q.  B.  02. 

If  the  whole  facts  show  that  the  persou  soujfht  to  be  charjjed  authorised 
the  carryiui^  on  »tf  the  business  on  account  and  for  the  benetit  of  himself, 
then  he  is  liable  as  a  partner  would  be,  anil  he  can  no  more  avoid  responsi- 
bility to  third  persons  by  showiuii  that  he  had  sti|)ulatt'd  with  the  ostensible 
partners  that  he  should  not  be  liai)le  for  the  debts  of  the  linn  than  coulil  any 
other  concealed  principal  by  stipulations  with  his  own  afjent  avoid  liaiiility  to 
third  parties  on  contracts  efl'ected  by  that  ajjent  «ui  his  behalf  within  the 
authority  Kiveii  by  liini.  But  it  Is  obvious  that  it  is  almost  impossible  to 
detlne  accurately  what  are  the  states  of  circumstances  which  establish  the 
relations  in  this  sense  of  principal  and  aj^ent.  Capital  embarked,  powers  of 
interference  in  the  business,  |)rollts  received,  are  all  circumstances  to  be 
taken  into  c<jnsideralion  in  deciding;  the  <|uestion.  See  Cox  v.  Ilirkinun,  9  C. 
B.  N.  S.  85,  pi-r  Pollock,  C.  B. ;  Mollico,  March  &  Co.  v.  Ttw  Court  of  \Vnr,l,  L. 
R.  4  V.  C.  43.j;   Rush  v.  Parki/ns,  L.  K.  20  Eq.  .VM,  44  L.  J.  Ch.  (110. 

Since  the  above  remarks  were  written,  the  subject  has  been  exhaustively 
discussed  in  Poolfij  v.  Driver,  5  Ch.  1).  4.J.S,  4(1  L.  J.  Ch.  4Gt!,  by  Jessel,  M.  U., 
whose  judjjcment  has  been  further  considered  by  the  Court  of  Appeal  in  Ex. 
parte  Tennant,  In  re  Howard,  0  Ch.  1).  '.W.i,  and  in  Ex  parte  fJdhasse,  In  re 
Meijcrand,  7  Ch.  D.  511.  The  jud.i;ments  in  those  three  cases,  it  is  submitted, 
fully  sui)port  the  doctrine  which  in  the  last  two  paraLcra|)iis  it  was  attempted 
to  enunciate.  See  especially  the  juiis;ment  of  Cotti>n,  L.  J.,  in  Ex  parte  Ten- 
nant, at  p.  ;U5.  "  I  take  it,"  says  his  lordship,  "  the  law  is  this  :  that  partici- 
pation in  protits  is  not  now  conclusive  evidence  of  the  existence  of  a  part- 
nership, but  it  is  one  of  the  circumstances,  and  a  very  strong?  one,  wliich  are 
to  be  taken  into  consideration  for  the  purpose  of  seeinj;  whether  or  not  a 
pai'tncrship  exists,  that  is  to  say,  whether  there  was  a  joint  business;  or, 
puttiuir  it  in  another  way,  whether  the  parties  were  carryin*;  on  the  business 
as  principals  and  as  agents  for  each  other,  whether  it  is  a  joint  business  or 
the  business  of  one  only." 

The  Master  of  the  Uolls,  however,  in  Poolejj  v.  iJrirer,  indicates  an  opinion 
that  the  test  of  agency  is  of  no  avail,  because  in  the  sense  in  which  it  must 
be  used,  the  term  "  agent"  is,  his  lordship  considers,  simply  co-extensive  with 
that  of  partner.  He  lays  down  generally  as  follows  :  "If  we  find  an  associa- 
tion of  two  or  more  persons  formed  for  the  purpose  of  carrying  on  in  the 
first  instance  or  continuing  to  carry  on  business,  and  we  find  that  those  per- 
sons share  between  them  generally  the  profits  of  that  business,  as  I  under- 
stand the  law  of  the  case  as  laid  down  by  the  highest  authority  (the  House 
of  Lords  in  Cox  v.  Hickman),  those  pei'sons  are  to  be  treated  as  partners  in 
that  business,  unless  there  are  surrounding  circumstances  to  sliow  that  they 
are  not  really  pai'tners.  That,  of  course,  brings  me  again  to  another  ques- 
tion, wliich  must  always  be  considered,  and  that  is,  whether  looking  at  the 
contract  as  a  wbole,  it  is  intended  to  secure  the  benefit  of  a  partnership  with 
or  without  its  liabilities,  or  whether  it  is  not  intended  tliat  tlie  benefits  of  a 
partnership  shall  be  secured." 


WAUGH    V.    CARVER.  1197 

In  Ex  parte  Tennnnt,  In  re  Howard,  0  Ch.  D.  303,  the  Court  of  Appeal  came 
to  the  conohision  that  although  there  was  a  contract  by  which  the  supposed 
partner  was  to  have  a  share  in  the  profits  of  a  business  carried  on  by  his  son, 
the  whole  circumstances  must  be  looked  at,  and  these  negatived  any  inten- 
tion in  the  parties  to  create  a  partnership.  (Another  case  where  the  facts 
were  held  to  negative  a  partnership  is  Deane  v.  Harris,  33  L.  T.  N.  S.  639.) 

In  Ex  parte  Delhasse,  In  re  Megevand,  7  Ch.  D.  511,  the  same  Court  came  to 
an  opposite  conclusion  as  to  the  true  inference  to  be  drawn  from  the  facts  of 
that  case,  and  held  that  a  partnership  was  created. 

In  the  latter  case  Thesiger,  L.  J.,  cites  Lord  Cranworth  as  giving  "  as  the 
test  that  which  no  doubt  must  now  be  taken  as  the  pi'oper  test  to  be  applied 
in  all  these  cases,  namely,  that  the  real  ground  of  liability  as  a  partner  is, 
that  the  trade  has  been  carried  on  by  persons  acting  on  behalf  of  the  person 
whom  it  is  attempted  to  make  liable  as  a  partner.  But,"  adds  Lord  Justice 
Thesiger,  "in  the  very  same  page  in  which  those  words  occur.  Lord  Cran- 
worth also  says  that  the  participation  in  profits  is  in  general  a  sufliciently 
accurate  test,  and  that  the  right  of  participation  in  profits  aflbrds  cogent, 
often  conclusive  evidence  of  a  partnership.  If  that  be  so,  it  follows  as  a 
logical  consequence,  that  if  in  addition  to  participation  in  profits  the  arrange- 
ment provides  for  a  participation  in  losses,  and  also  certain  stipulations 
tantamount  to  the  ordinary  [Stipulations  which  one  would  expect  to  find  in 
the  case  of  a  dormant  pai'tner,  it  is  an  a  fortiori  reasoning  in  such  a  case  in 
favour  of  a  partnership." 

In  the  recent  case  of  Froivde  v.  IVilliams,  56  L.  J.  Q.  B.  62,  it  was  held  that 
the  agreement  did  constitute  a  partnership. 

It  should  be  observed  that  in  Cox  v.  Hickman  and  Bullen  v.  Sharp  the 
amount  of  profits  receivable  w'as  limited,  viz.,  to  the  amount  of  the  respec- 
tive defendants'  debts,  and  doubts  have  been  expressed  as  to  whether  those 
decisions  would  be  binding  where  the  participation  in  profits  was  unlimited. 
But  in  Holme  v.  Hammund,  L.  R.  7  Ex.  218,  where  the  latter  was  the  case, 
the  Court  of  Exchequer  declined  to  draw  any  distinction  on  that  gi'ound,  nor 
did  the  Court  of  Appeal  in  Ex  parte  Tennant,  uhi  siq').  In  Cox  v.  Hickman,  9 
C.  B.  N.  S.  47,  100,  Lord  Wensleydale  says,  "  The  trustees  (under  the  deed) 
are  certainly  liable,  because  they  actually  contract  by  their  undoubted  agent." 
For  tAVO  cases  where  trustees  under  inspectorship  and  composition  deeds 
have  been  held  not  liable,  see  Redpath  v.  Wigg,  L.  R.  1  Ex.  335,  35  L.  J.  Ex. 
211 ;  Easterbrook  v.  Barker,  L.  R.  6  C.  P.  1,  40  L.  J.  C.  P.  17.] 

On  the  above  principles  it  is  that  a  dormant  partner,  i.e.,  a  partner  whose 
name  does  not  appear  to  the  world  as  part  of  the  firm,  is  held  responsible  for 
its  engagements,  even  to  those  who,  when  the}'  contracted  with  the  firm, 
were  ignorant  of  his  existence.  Exp.  Cellar,  Rose,  297  ;  Wintle  v.  Crowther, 
1  C.  &  P.  316;  1  TyrAV.  210;  BoUnson  v.  Wilkinson,  3  Price,  538;  IBottomley 
V.  Nuttall,  5  C.  B.  N.  S.  122;  per  Blackburn,  J.,  Kilshaw  v.  Jukes,  3  B.  &  S. 
847]. 

In  one  respect,  however,  there  exists  very  considerable  diflerence  between 
the  liabilities  of  an  ostensible  partner  and  those  of  a  dormant  one;  for  the 
liability  of  a  partner  who  has  appeared  in  the  firm,  in  respect  of  the  acts  and 
contracts  of  his  co-partners,  continues  even  after  the  dissolution  of  the  part- 
nership, and  the  removal  of  his  name  therefrom,  until  due  notice  has  l)een 
given  of  such  dissolution.  See  Parkin  v.  Carruthers,  3  Esp.  248;  Graham  v. 
Hope,  Peake,  154. 

And  though,  as  far  as  the  public  at  large  are  concerned,  notice  in  the  Gazette 


1108  w.vr*;!!    v.  caiivki:. 

is  held  sulHficnt  for  this  purpost-,  (ImJ/ri'ii  v.  Tunihtill,  1  Ksp.  371;  W'rvjhtinin 
V.  J'lilhiii.  1  Starli.  .■57r> ;  limilip  v.  l/nward,  17  C.  B.  1215,  yi-t,  to  persons  who 
have  dealt  witli  tiiu  linn,  more  Hpeeitle  iiiforiiiatioii  must  i)e  ;;iven.  Kirtrun 
V.  Kirican,  4  Tyrw.  491.  And  this  is  generally  ellectod  by  circulars.  See  Xew- 
some  V.  Coles,  2  Camp.  (il7;  Jenkins  v.  Dlizard,  1  Stark.  418.  Hut  if  a  fair 
presumption  of  actual  notice  can  be  raised  from  otiier  circumstances,  tliat 
will  be  sutllcient.  M'lrer  v.  Hiiinhle,  1(»  Ea.st,  ICO.  Thus,  a  chaufje  in  tlie 
wording;  of  che(iues  has  l)eeii  held  notice  to  a  party  usinif  them.  Ilnrfoot  v. 
GoixUiitll,  3  Camp.  147. 

Hut  it  is  not  to  be  taken  as  a  lei,'al  incident  of  the  position  of  a  flnnnnnt 
partner,  but  ratlier  as  a  prol)al)iiity  arisin-r  from  the  lirer.ter  likeliliood  <(f  his 
share  in  tlie  llrm  l)eini;  unknown  to  those  who  deal  with  it,  that  his  liability 
ceases  upon  the  actiial  dissolution  of  the  partnership,  whilst  that  of  an  oxftiisi- 
hle  partner  continues,  towards  persons  who  have  no  notice  of  the  dissolution ; 
for  although  generally  speaking,  a  donnnut  partner  may  retire  witliout  giving 
notice  to  the  world,  IIr<tth  v.  Sansam,  4  H.  &  Ad.  172;  yet,  even  such  a  part- 
ner remains  lial)le  to  persons  who  became  aware  of  his  partnership  whilst  it 
lasted,  and  continued  their  dealings  with  the  tlrm  under  the  In-lij'f  that  he 
still  remained  a  nu'int)er  of  it.  If  such  persons  were  not  made  aware  of  the 
dissolution,  it  nnglit  l)e  inferred  tliat  they  dealt  on  the  faith  of  the  partner- 
ship; and,  as  to  them,  unless  tlie  circumstances  of  the  case  rebutted  such  an 
inference,  even  a  ilormant  partner  would  still  be  liable.  Ernns  v.  Dnttninond, 
4  Esp.  89,  Lord  Kenyon ;  Carter  v.  Whnlleij,  1  B.  &  Ad.  13,  per  Littledale  and 
Parke,  JJ. ;  Fnrrar  v.  Deflinue,  1  Car.  &  K.  580,  Cresswell,  .1. 

[.\s  to  the  application  of  the  doctrine  of  reputed  ownership  in  case  of  the 
bankruptcy  of  an  ostensibh'  |)arliit'r,  see  K.r  /larte  Ilaijtnnn,  in  re  Pulsfnrd,  8 
Ch.  1).  11,  47  L.  J.  Hank.  .■.4. 

The  case  of  Cox  v.  Ilirkmnn  was  soon  followed  by  the  statute  already 
referred  to,  ettecting  in  certain  instances  tlierein  specilhnl  a  dissolution  of  the 
principle  laid  down  in   W'mn/h  v.  ('arnr. 

Hy  that  statute,  2.s  &  2'.)  Vict.  c.  HC,  s.  1,  ••  Tlie  advance  of  nioiicy  f»j  irrn/  ,,/ 
litiin  to  a  person  engaged  or  about  to  engage  in  any  trade  or  undertaking 
upon  a  contract  in  writing  with  such  person  that  the  lender  shall  receive  a 
rate  of  interest  varying  with  the  profits,  or  shall  receive  a  share  of  the  proflt.>* 
arising  from  carrying  on  such  trade  or  undertaking,  .shall  not,  of  itself,  consti- 
tute the  lender  a  jiartner  witli  the  person  or  the  jiersons  carrying  on  such 
trade  or  undertaking,  or  render  him  responsil)le  as  such." 

"  In  order  to  bring  a  case  witliin  the  .\ct  tiiere  must  be  a  contract  in  writ- 
ing, and,  according  to  my  reading  of  the  Act,  tlie  contract  must  on  the  face 
of  it  show  that  tlie  transaction  is  a  loan,"  per  Lord  Chelmsford,  in  Syers  v. 
Sijers,  1  App.  Cas.  185,  in  which  case  is  discussed  the  effect  of  a  letter  under- 
taking "  to  execute  a  deed  of  copartnership  for  one-eighth  share  in  the  profits 
of  the  Oxford  Music  Hall  and  Tavern,  to  be  drawn  up  under  the  Limited 
Partnership  Act  of  28  &  29  Vict.  c.  86."  In  Pooley  v.  Driver,  5  Ch.  D.  458  ;  4G, 
L.  J.  Ch.  4GG,  it  was  decided  l>y  Jessel,  M.  R.,  that  the  contract  in  writing 
must  he  signed  by  any  jiarty  seeking  to  have  the  benefit  or  protection  afforded 
by  the  act,  and  that  "  the  advance  of  money  by  way  of  loan"  must  not  only 
profess  to  be  by  way  of  loan.  l)ut  must  be  a  real  loan. 

Tlie  last  proposition,  that  in  each  case  the  whole  contract  must  be  consid- 
ered to  see  whether  a  real  loan  was  intended  is  sustained  by  the  judgments 
in  the  Court  of  Appeal  in  Ex  parte  Tennant,  6  Ch.  D.  303,  and  in  Ex  parte 
Delhasse,  re  Megevand,  7  Ch.  D.  511.     See  also  Fronde  v.  Williams,  50  L.  J. 


WAUGH    V.    CARVER.  1199 

Q.  B.  62,  where  Denman,  J.,  lays  down  that  "  it  is  good  primd,  facie  evidence 
of  a  partnership  if  tliere  be  an  agreement  tliat  when  tlie  business  is  to  be 
carried  on  tliere  is  to  be  a  sharing  of  the  profits." 

Before  setting  forth  the  2nd  section,  it  will  be  better  to  state  the  eftect  of 
the  law  before  the  act  was  passed.  The  participation  in  profits  which  was 
held  to  constitute  a  partnership  was,  that  of  a  person  having  a  right  to  a 
share  of  the  profits  and  to  an  account  in  order  to  ascertain  his  share,  7iot  that 
of  a  mere  servant  or  agent  receiving,  in  respect  of  his  loages,  a  sum  proportioned 
to  a  share  of  the  profits,  or  which  might  he  partly  furnished  out  of  the  profits. 
The  distinctions  on  this  subject  ran  verj^  fine,  and  in  previous  editions  of  this 
work,  the  principal  cases  were  reviewed  at  some  length,  in  the  endeavour  to 
classify  them. 

It  will  be  suftlcient  now  to  state  the  result  of  the  principal  cases,  which 
seems  to  have  been,]  that  whenever  it  appeared  that  the  agreement  loas 
intended  by  the  parties  themselves  as  one  of  agency  or  service,  but  the  agent  or 
servant  [was]  to  be  remunerated  by  a  portion  of  the  profits,  then  the  contract 
[was]  considered  as  between  themselves  one  of  agency  (see  Geddes  v.  Wallace, 
2  Bligh,  270;  7^.  v.  Hartley,  Russ.  &  R.  139),  but,  as  between  them  and  third 
persons,  one  of  partnership.  See  Smith  v.  Watson,  2  B.  &  C.  407;  Ex  parte 
Eowlandson,  1  Rose,  91;  Gi-een  v.  Beesley,  2  Bing.  N.  C.  110;  Ex  parte  Lang- 
dale,  18  Ves.  300;  \_Whpatcroft  v.  Hickman,  su2:)ra ;  Walker  v.  Hirsch,  27 
Ch.  D.  400.] 

But  if  the  agent  or  servant  [was]  to  be  remunerated,  not  by  a  portion  of 
the  profits,  but,  as  in  D)-y  v.  Boswell,  I  Camp.  329,  Dixon  v.  Cooper,  3  Wils. 
40,  and  Wilkinson  v.  Frasier,  4  Esp.  182,  by  part  of  a  gross  fund  or  stock 
which  [was]  not  altogether  composed  of  the  profits,  the  contract,  even  as 
against  third  persons,  [would  have  been]  one  of  [ordinary]  agency,  although 
that  fund  or  stock  [might]  include  the  profits,  so  that  its  value,  and  the 
quantum  of  the  agent's  reward,  [would]  necessarily  fluctuate  with  their 
fluctuation. 

There  was  a  third  case,  that,  viz.,  in  which  the  agent  or  servant  was  not  to 
receive  a  part  of  the  profits  in  specie,  but  a  sum  of  money  calculated  in  propor- 
tion to  a  given  quantum  of  the  profits.  In  such  a  case  Lord  Eldon  expressed 
his  opinion,  that  the  agent  so  remunerated  would  not  be  a  partner,  even  as  to 
third  persons.  "  It  is  clearly  settled,"  said  his  lordship,  in  Ex  parte  Hamper, 
17  Ves.  112,  "  though  I  regret  it,  that  if  a  man  stipulates  that  he  shall  have 
as  the  reward  of  his  labour,  not  a  specific  interest»in  the  business,  but  a  given 
sum  of  money,  even  in  proportion  to  a  given  quantum  of  the  profits,  that  will 
not  make  him  a  partner;  but  if  he  agrees  for  a  part  of  the  profits  as  such, 
giving  him  a  right  to  an  account,  though  having  no  property  in  the  capital, 
he  is  as  to  third  persons  a  partner."  In  another  part  of  the  same  case  he 
says  —  "  The  cases  have  gone  to  this  nicety,  upon  a  distinction  so  thin  that 
I  cannot  state  it  as  established  upon  due  consideration,  that  if  a  trader  agree 
to  pay  another  person,  for  his  labour  in  the  concern,  a  sum  of  money,  even 
in  proportion  to  the  profits,  equal  to  a  certain  shai'e,  that  will  not  make  him 
a  partner.  But  if  he  has  a  specific  interest  in  the  profits  themselves,  he  is  a 
partner."  17  Ves.  404.  See  Ex  parte  Watson,  19  Ves.  461 ;  [Harrington  v. 
Churchward,  29  L.  J.  Cha.  521 ;  and  Lyon  v.  Knowles,  3  B.  &  S.  550;  32  L.  J. 
Q.  B.  74. 

The  2nd  section  of  the  act  provides  as  follows:  "No  contract  for  the 
remuneration  of  a  servant  or  agent  of  any  person  engaged  in  any  trade 
or  undertaking  by  a  share  of  the  profits  of  such  trade  or  undertaking  shall, 


1200  WAIGH    V.    CAKVKl;. 

of  itself,  rendor  such  servant  or  ajjent  responsible  as  a  partner  therein,  nor 
{jive  Inm  the  rights  of  a  partner." 

iiy  the  8ril  section,  "  No  person  i)eln<j  tlie  widow  or  cliild  of  tlie  deceased 
partner  of  a  trader,  and  receivins;  by  way  or  annuity  a  portion  of  tlie  profits 
made  by  such  trader  in  his  lousiness,  shall,  by  reason  only  of  such  receipt,  be 
deemed  to  be  a  partner  of  or  to  be  sul)ject  to  any  liabilities  incurred  l)y  such 
trader."  This  section  meets  the  case  put  l)y  the  Lord  Chief  Justice  in  the 
leading  case,  p.  894. 

The  4th  section  enacts,  that  '•  No  person  recei\  inj;  l)y  way  of  annuity  or 
otherwise  a  portion  of  the  protlts  of  any  business,  in  consideration  of  the  .sale 
by  hiui  of  the  froodwill  of  such  business,  shall,  by  reason  only  of  such  receipt, 
l)e  dernied  to  be  a  partner  of  or  be  subject  to  the  lial)ilities  of  the  person 
carrying  on  such  business."  In  relation  to  this  section,  see  litnrlinson  v. 
(Jlnrkr,  15  M.  &  W.  21)2;  and  Ihtrnj  v.  AV.s/n/m,  3  C.  B.  (Ul,  a  case  to  which 
it  should  seem  this  section  wo\ild  not  ap|)ly.  That  case  was  recoifnised  in 
Whfntrroft  v.  Hickman,  suprd. 

The  words  of  section  5  are:  "  In  the  event  of  any  such  trader  as  aforesaid 
beinji  adjudfjed  a  bankrupt,  or  taking  the  benefit  of  any  act  for  tlie  relief  of 
insolvent  ilebtors,  or  entering;  into  an  arran<;enient  to  pay  his  creditors  less 
than  twenty  shillins;s  in  the  poumi.  or  dyini;  in  insolvent  circumstances,  the 
lender  of  any  such  loan  as  aforesaid  shall  not  be  entitled  to  recover  any 
portion  of  his  i)rincipal.  or  of  the  profits  or  interest  payable  in  respect  of 
such  loan,  nor  shall  any  such  vendor  of  a  ijoodwill  as  aforesaid  be  entitled 
to  recover  any  such  protlts  as  aforesaiil  until  the  claims  of  the  other  cretlitors 
of  the  said  trader  for  valuable  consideration  in  money  or  money's  worth  have 
been  satisfied."  See  on  this  section  AV  parte  Mills,  L.  R.  8  Ch.  5G'J.  It  does 
not  deprive  the  lender  of  the  benefit  of  any  niortfjage  he  may  have  taken  for 
such  loan,  so  as  to  be  postponctl  in  respect  of  it  to  the  claims  of  the  mort- 
gagor's other  creditors.  Ex  parte  Sheil,  in  re  Lonenjnn,  4  Ch.  I).  789,  4(1  L.  J. 
Bank.  r>2.  overruling  Ex  parte  Mararthur,  40  L.  ,T.  Bkcy.  HO.  And  see  Bndiley 
v.  CoiiKiiliiJ'tted  Bank.  .U  Ch.  D.  ,"j;}G.  But  the  words  of  the  section  do  not 
"  confine  the  restriction  to  coming  in  in  competition  with  creditors  in  respect 
of  the  particular  tratle  or  creditors  whose  ilebts  are  contracteil  while  that 
trade  is  going  on.  The  words  are  general."  Per  Cotton,  L.  J.,  iu  Ex  parte 
Taylor,  12  Cli.  D.  at  p.  37C. 

By  section  G,  the  word  "  person"  as  used  in  the  act  is  made  to  include  a 
partnership  firm,  a  joint  stock  company,  and  a  corporation. 

It  may  be  remarked  that  the  principle  on  which  (\>x  v.  Ilirkman  was 
decided  is  broad  enough  to  include  a  large  number  of  cases  not  included  in 
the  statute :  for  instance,  to  entitle  a  person  who  may  have  lent  money  to  the 
benefit  of  the  act,  s.  1,  there  must  be  a  contract  in  writiuf/.  On  this  it  has 
been  attempted  to  found  an  argument,  which  was  urged  in  Holme  v.  Ilain- 
moml  {sup.),  that  the  statute,  being  later  than  the  decision  in  Cox  v.  Hickman, 
must  be  taken  either  to  be  evidence  that  the  decision  in  Cox  v.  Hickman  was 
not  so  broad  as  it  has  been  supposed  to  be,  and  as  it  is  above  stated,  or  else 
to  have  effected  a  statutory  limitation  to  that  decision,  and  that  in  all  cases 
not  specifically  provided  for  by  the  act  the  receipt  of  profits  must  create  a 
partnership  liability  as  had  been  supposed  to  be  the  case  i)efore  Cox  v. 
Hickman. 

The  argument  was  unavailing.  Kelly,  C.  B.,  observes  in  his  judgment  that 
"  it  seems  to  him  that  the  eflect  of  the  statute  is  merely  that  as  respects  the 
protected  classes  the  sliaring  in  profits  shall  be  no  evidence  at  all  of  a  con- 


WAUGH    V.    CARVER.  1201 

tract  of  partnership,  whereas  with  regard  to  others  it  is  evidence,  though 
insufficient  of  itself  to  establisli  the  liability." 

With  great  humility  the  act  does  seem  to  contemplate  the  receipt  of  protits 
being  given  in  evidence,  even  in  the  specified  cases  :  for  it  provides  that  the 
receipt  of  the  profits  shall  not  "  of  itself  "  and  again  '•  l)y  reason  of  the  receipt 
onhj  "  constitute  a  partnership. 

It  is  submitted  that  the  distinction  may  be  that  in  the  cases  specified  by 
the  act  the  receipt  of  the  profits,  though  admissible  in  evidence,  is  insufficient 
■per  se  to  establish  the  liability,  whereas  in  other  cases,  it  may  be,  to  repeat 
Lord  Cranworth's  words,  "  cogent  and  often  conclusive  evidence,"  and  amplj' 
sufficient  even  per  se  if  not  rebutted,  though  liable  to  be  rebutted  by  the  other 
circumstances  of  the  case.  In  this  way  the  act  would  be  a  step  in  advance 
of  Cox  V.  Hickman.  And  see  per  Thesiger,  L.  J.,  in  Ex  parte  Delhasse,  7  Ch. 
D.  531. 

Bramwell,  B.,  however,  in  his  judgment  takes  a  bolder  line.  "  It  is  asked, 
if  the  defendants  are  not  lial)le,  what  was  the  use  of  the  28  &  29  Vict.  c.  86? 
If  I  say  none,  it  would  only  show  that  the  act  was  useless.  In  truth  it  was 
passed  before  the  effect  of  Cox  v.  Hickman  Avas  understood,"  and  this  would 
seem  to  be  the  inclination  of  the  opinion  of  Jessel,  M.  R.,  in  Pooley  v.  Driver, 
5  Ch.  D.  pp.  484-G. 

In  MoUwo,  March  &  Co.  v.  The  Court  of  Wards,  L.  R.  4  P.  C.  419,  this  point 
was  raised  before  the  Privy  Council,  but  their  lordships  in  their  judgment  (p. 
437)  say  "  the  enactment  is  no  doubt  entitled  to  great  weight  as  evidence 
of  the  law,  but  it  is  by  no  means  conclusive;  and  wliou  the  existing  law  is 
shown  to  be  diflerent  from  that  which  the  Legislature  supposed  it  to  be,  the 
implication  arising  from  the  statute  cannot  operate  as  a  negation  of  its 
existence."  With  this  criticism  the  M.  R.  in  Pooley  v.  Driver  expresses  his 
concurrence.] 

With  respect  to  nominal  2^a>'tncrship :  —  that  takes  place  Avhere  a  person, 
having  no  real  interest  in  the  concern,  allows  his  name  to  be  held  out  to  the 
world  as  that  of  a  partner,  in  which  case  the  law  imposes  on  him  the  responsi- 
Inlity  of  one  to  persons  who  have  had  dealings  with  the  firm  of  which  he  has 
hekl  himself  out  as  a  member.  (See  the  judgment  of  the  Lord  Chief  Justice 
in  the  principal  case;  and  Guidon  v.  Bohson,  2  Camp.  302.) 

It  has,  as  we  have  seen,  been  laid  down  in  Young  v.  Axtell,  cited  in  the 
text,  that  It  makes  no  difference  in  such  a  person's  liability  that  the  party 
seeking  to  charge  him  did  not  know  at  the  time  when  he  gave  credit  to  the 
firm  that  he  had  so  held  himself  out. 

But  this  position  appears  very  questionable ;  for  the  rule  which  imposes 
on  a  nominal  partner  the  responsibilities  of  a  real  one  is  framed  in  order  to 
prevent  those  persons  from  being  defrauded  or  deceived  who  may  deal  with 
the  firm  of  which  he  holds  himself  out  as  a  member,  on  the  faith  of  his 
apparent  responsibility.  But  where  the  person  dealing  with  the  firm  has 
never  heard  of  him  as  a  component  part  of  it,  that  I'eason  no  longer  applies, 
and  there  is  not  wanting  authority  opposed  to  such  an  extension  of  the  rule 
respecting  a  nominal  partner's  lialjility.  "  If  it  could  be  proved,"  says  Parke, 
J.,  "  that  the  defendant  held  himself  out —  not  to  the  world,  for  that  is  a  loose 
expression  —  but  to  the  plaintiff  himself ,  or  under  such  cii'cumstances  of  pub- 
licity as  to  satisfy  a  jury  that  the  plaintiff  knew  of  it,  and  believed  him  to  be  a 
partner,  he  would  be  liable."     Dickenson  v.  Valpy,  10  B.  &  C.  140. 

So  too  in  Shott  v.  Streatfield,  1  M.  &  Rob.  9,  where  the  question  was  whether 
Green  was  liable  jointly  with  Streatfield,  a  witness  proved  that  he  had  been 


1202  WAUGH    V.    CAKVKU. 

told  in  (Jrc'cn's  presence  that  Green  had  become  a  partner.  He  was  then 
asked  whetlier  he  hud  repeated  the  information,  on  wliieli  Camphfll  ohji-etetl 
that  this  was  not  eviilence,  nnless  it  were  siiown  that  the  defendants,  or  one 
of  them,  were  present  when  it  was  repeated;  .s.(/  per  Lonl  Tenterden,  C.  J., 
'•  I  tiiink  it  is;  because  othenciae  it  icill  be  saul  jirmeutly,  that  irhat  icaa  said 
was  roitjiiifd  to  the  icitness,  and  that  the  plain  tiff  ruuld  tint  have  acted  on  it." 

In  A/derson  v.  Popes,  1  Camp.  404,  n.,  it  was  held,  that  a  man  could  not  be 
cliari?ed  as  a  i)artner  by  one  who,  when  he  contracted,  had  notice  that  he  was 
but  nominally  so.  The  reason  of  this  must  have  been,  because  he  could  not 
have  been  deceived,  or  induced  to  deal  witli  the  llrm,  by  any  reliance  on  the 
nominal  partner's  apparmt  responsibility.  And  the  same  reason  precisely 
applies,  whether  the  false  impression  on  the  customer's  mind  have  lu-en  put 
an  end  to  by  a  notice,  or  whether  in  conse(iuence  of  his  i^rnorance  that  the 
nominal  i)artner's  name  liad  been  used,  no  false  imj)ression  ever  existed  (m 
his  mind  at  all.  (See  Carter  v.  Whalley,  1  B.  &  Ad.  11;  Ford  v.  W'hitnutrch, 
Exch.  Mich.  1841 ;  1  Hurls.  &  Walm.  53;  Pott  v.  Eijton,  3  C.  B.  32;  [Edmuml- 
snn  V.  Thompson,  31  L.  .1.  Kxch.  207;  Stephens  v.  Pei/nnlds,  2  Fost.  &  Fin. 
147.]) 

However,  in  order  to  tix  a  person  with  this  description  of  liability,  no  par- 
ticular mode  of  hnhlinj;  himself  out  is  requisite.  If  he  ilo  acts,  no  matter  of 
what  kintl,  sulllcient  to  induce  others  to  believe  him  a  |)artner,  he  will  be 
liable  as  such.  See  Spencer  v.  liillimi,  3  Camp.  310;  Parker  v.  liarkir,  1  B.  & 
B.  !>;  3  More,  22t; ;  [(litrneij  v.  Erans,  3  II.  &  N.  122;  Ex  parte  Good,  in  re 
Arniilaije,  ."i  Ch.  1).  4(;.  4<!  L.  J.  Ch.  Go ;  Ex  parte  Ilayman,  in  re  Pulsford,  8  Ch. 
1).   11,  47   L.  J.  Ch.   Bank.  :,\,  and  see  Jlofjarlh  v.  Latham  &  Co.,  3  Q.  B.  1). 

<;43.] 

But  a  man  wiio  de>(ril)es  himself  as  a  jiartner  with  another  in  one  particu- 
lar business  does  not  thereby  hold  himself  out  as  such  in  any  other  business 
which  that  other  may  happen  to  i)rofess.  Pe  Berkom  v.  Smith,  1  Esp.  2!); 
Pidr/wiif  v.  Philip,  '>  Tyrw.  131. 

Nor  is  a  i)erson  liable  as  a  nondnal  jtartner,  because  others,  without  his 
consent,  use  his  name  as  that  of  a  member  of  their  llrm,  even  althoufrh  he 
may  have  previously  belon;;ed  to  it,  provided  he  have  taken  the  proper  steps 
to  notify  his  retirement.     Netrsome  v.  Coles,  2  Camp.  617. 

Nor,  as  has  been  already  stated,  can  a  man  be  charged  as  a  member  of  the 
firm  by  one  who  had  express  notice  that  he  was  but  nominally  so.  Alderson 
V.  Popes,  1  Camp.  404,  in  notis. 


The  test  of  partnership  laid  down.  —  The  law  in  America 
u})Oii  this  subject  is  in  an  unsatisfactory  state.  The  doctrine 
laid  down  in  Waugh  v.  Carver,  that  an  indefinite  participation 
in  profits  makes  one  a  partner  as  to  third  persons,  because  by 
such  participation  the  fund  on  which  creditors  rely  is  dimin- 
ished, was  formerly  quite  generally  accepted  in  this  country, 
though  not  ahvays  without  some  modification ;  3  Kent,  *  27 ; 
Dob  V.  Halsey,  16  John.  40;  Manhattan  Brass  Co.  v.  Sears,  45 
N.  Y.  797 ;  Leggett  v.  Hyde,  58  N.  Y.  272 ;  s.  c.  17  Am.  Rep. 


WAUGH    V.    CARVER.  1208 

244,  Wood  V.  Vallette,  7  Ohio  St.  172;  Bromley  v.  Elliot,  38 
K.  H.  287,  306 ;  Parker  v.  Caiifield,  37  Conn.  250  ;  Everett  v. 
Chapman,  6  Conn.  347 ;  Bigelow  v.  Elliot,  1  Cliff.  28 ;  Winship 
V.  Bank  of  U.  S.,  5  Pet.  560 ;  Appleton  v.  Smith,  24  Wis.  331 ; 
Sheridan  v.  Medara,  10  N.  J.  Eq.  469 ;  Lengle  v.  Smith,'  48 
Mo.  276 ;  Bailey  v.  Clark,  6  Pick.  372 ;  Sager  v.  Tupper^ 
38  Mich.  258 ;  Strader  v.  White,  2  Neb.  348 ;  Dalton  City  Co. 
V.  Hawes,  37  Ga.  115 ;  Buckner  v.  Lee,  8  Ga.  285 ;  Brown  v. 
Higginbotham,  5  Leigh  (Va.)  583 ;  Cox  v.  Delano,  3  Dev.  N.  C. 
89;  Rowland  v.  Long,  45  Md.  439;  Purviance  v.  McClintee,  6 
S.  &  R.  259  ;  Brigham  v.  Dana,  29  Yt.  1,  9  ;  Wright  v.  Davidson, 
13  Minn.  449;  Brown  v.  Cook,  3  N.  H.  64.  For  a  late  case 
which  quotes  with  approval  the  opinion  that  a  communion  of 
profits  implies  a  communion  of  loss,  see  Bloomfield  v.  Buchanan, 
13  Or.  108  (1885). 

Limitations  of  rule:  gross  and  net  profits.  —  Among  the  limita- 
tions or  modifications  which  have  been  made  upon  the  broad 
rule  of  Waugh  v.  Carver,  is  the  idea  that  while  a  sharing  of  net 
profits  makes  one  liable  as  a  partner,  such  liabilities  do  not 
follow  from  a  sharing  of  gross  profits ;  St.  Denis  v.  Saunders, 
36  Mich.  369 ;  Gass  v.  New  York,  Providence  &  Boston  R.  R. 
Co.,  99  Mass.  220 ;  Chapman  v.  Eames,  67  Me.  452 ;  Cutler  v. 
Winsor,  6  Pick.  335;  Turner  v.  Bissell,  14  Pick.  192;  Chase 
V.  Barrett,  4  Paige,  148,  159;  Bowman  v.  Bailey,  10  Yt.  170; 
Pattison  v.  Blanchard,  1  Seld.  186;  Merrick  v.  Gordon,  20 
N.  Y.  93 ;  Butterfield  v.  Lathrop,  71  Pa.  St.  225  ;  Ellsworth  v. 
Tartt,  26  Ala.  733.  This  distinction  between  sharing  gross  and 
net  profits  as  a  test  of  partnership,  has  been  severely  criticised ; 
Story  on  Part.,  7th  ed.  §  36  n. ;  3  Kent,  *25,  n.  [12th  & 
13th  eds.]. 

Some  cases,  wdiile  apparentl}^  following  the  distinction  be- 
tween gross  and  net  profits,  have  so  modified  it  as  to  place  the 
decisions  on  firmer  grounds ;  Thompson  v.  Snow,  4  Grnl.  264 ; 
Loomis  V.  Marshall,  12  Conn.  69 ;  Donnell  v.  Harshe,  67  Mo. 
170 ;  Musser  v.  Brink,  68  Mo.  242. 

A  division  of  profits  means  net  profits ;  Connolly  v.  Davidson, 
15  Minn.  519. 

Sharing  profits  as  profits.  —  Another  distinction  appUed  to 
the  rule  of  Waugh  v.  Carver,  and  closely  connected  with  that 
between  gross  and  net  profits,  was  that  one  was  to  be  held 
liable  as  a  partner  when  he  was  entitled  to  a  share  of  the  profits 


1204  AVAl  (ill     W    (  AKVKK. 

as  profits,  l)ut  not  if  lie  was  merely  to  receive  payments  which 
were  to  vary  with  the  profits,  or  a  sum  equal  to  a  certain  part 
of  the  2>i"ohts.  This  gave  opj)ortunity  for  niakiiii^  extri'iiicly 
fine  distinctions;  Brockway  v.  Huniap,  !•!  JJarh.  oOll ;  Picrsoii 
V.  Steinmyer,  4  Rich.  L.  309;  Looinis  v.  ^hirshall,  12  Conn.  CD; 
Turner  v.  liissell,  14  Pick.  192;  Miller  v.  Bartlctt,  15  S.  &  U. 
1:57;  Irwin  v.  Bidwell,  72  Pa.  St.  244;  Eastman  r.  Clark,  53 
N.  II.  27(3;  Ben.son  v.  Ketchum,  14  N.  Y.  331,  355;  Miller  v. 
Bartlett,  15  S.  &  11.  137.  For  other  cases  showing  moditica- 
tions  of  the  rule  in  Waugh  v.  Carver  see  cases  cited  infra  in 
regard  to  a  share  of  tlu^  profits  being  given  as  compensation  for 
services,  as  rent,  as  interest,  k.Ve. 

Modification  of  rule  in  different  states.  —  Some  states  have 
iiioiUruMl  the  rul(!  as  laid  down  in  Waugh  v.  Carver,  or  have 
reversed  the  earlier  decisions  which  followed  that  case. 

New  York :  The  general  i-ule  of  Waugh  i\  Carver  is  still 
stated  to  be  law,  but  certain  limitations  have  been  made  ;  Cen- 
tral City  Savs.  Bank  v.  AValker,  66  N.  Y.  424 ;  Richardson  r. 
Ilugliett,  76  Id.  55;  s.  c.  32  Am.  Rep.  267;  Eager  v.  Crawford, 
76  id.  97;  Burnett  v.  Snyder,  81  Id.  550  ;  s.  c.  37  Am.  Rep.  527. 
This  case  holds:  "We  have  in  this  state  adhered  to  the  general 
doctrine  established  by  the  earlier  English  cases ;  and  although 
it  proceeds  upon  reasons  which  have  not  been  considered  en- 
tirely satisfactory,  it  was  applied  by  this  court  in  the  recent 
case  of  Leggett  v.  Hyde,  58  N.  Y.  272.  But  the  participation 
in  the  profits  of  a  trade  which  makes  a  person  a  partner  as  to 
third  persons  is  a  participation  in  the  profits  as  such,  under  cir- 
cumstances which  give  him  a  proprictar}'  interest  in  the  profits 
before  division  as  principal  trader,  and  the  right  to  an  account 
as  partner  and  a  lien  on  the  partnership  assets  in  preference  to 
individual  creditors  of  the  partner."  This  opinion  does  not 
seem  consistent  with  itself.  It  is  held  in  New  York  that  one 
does  not  become  liable  as  partner  because  he  is  "  to  receive  a 
share  of  the  profits  as  a  compensation  for  his  services,  or  for 
money  loaned  for  the  benefit  of  the  business."  Curry  v.  Fow- 
ler, 87  N.  Y.  33 ;  Cassidy  v.  Hall,  97  Id.  159. 

Ohio :  Harvey  v.  Childs,  28  Ohio  St.  319  approves  Cox  v. 
Hickman,  instead  of  following  "Wood  v.  Valette,  7  Ohio  St.  172. 
See  Farmers'  Ins.  Co.  v.  Ross,  29  Ohio  St.  429. 

Pennsylvania :  The  statute  of  April  6th,  1870  (Purdon  1299, 
pi.  16,  and  1300,  pi.  17),  provides  that  one  may  receive  a  share 


WAUGH   V.    CARVER.  1205 

of  the  profits  as  interest  on  money  loaned  or  as  compensation 
for  services,  without  becoming  liable  as  partner.  Hart  v. 
Kelley,  83  Pa.  St.  286.  The  broad  rule  of  Waugli  v.  Carver 
had  been  modified  prior  to  the  statute.  Irwin  v.  Bidwell,  72 
Pa.  St.  244 ;  Edwards  v.  Tracy,  62  Pa.  St.  381. 

New  Hampshire:  Eastman  v.  Clark,  53  N.  H.  276;  s.  c.  16 
Am.  Rep.  192  overthrows  the  old  rule  and  follows  Cox  v. 
Hickman. 

Connecticut:  It  is  now  held  that  the  sharing  of  profits  as 
profits  is  primd  facie  proof  that  one  is  liable  as  partner,  but 
that  a  share  of  the  profits  may  be  received  as  compensation  for 
services,  as  rent,  and  in  some  other  cases  without  creating  a 
partnership  even  as  regards  third  persons.  Parker  v.  Canfield, 
37  Conn.  250 ;  Citizens'  Bank  v.  Hine,  49  Conn.  236.  But  the 
idea  that  one  who  takes  part  of  the  j^rofits  diminishes  the  fund 
on  which  creditors  rely,  does  not  seem  to  be  wholly  abandoned. 
Citizens'  Bank  v.  Hine,  supra,  p.  241. 

Wisco7isin :  The  rule  of  Waugh  v.  Carver  has  been  adopted ; 
Appleton  V.  Smith,  24  Wis.  331 ;  Rosenfield  v.  Haight,  53  Wis. 
260.  But  an  exception  in  regard  to  receipt  of  profits  as  com- 
pensation for  services  is  established ;  Nicholaus  v.  Thielges,  50 
Wis.  491 ;  Ford  v.  Smith,  27  Wis.  267. 

Massachusetts :  The  rule  is  stated  to  be  that  a  person  who  has 
not  agreed  to  be  a  partner,  nor  held  himself  out  as  a  partner,  is 
yet  liable  as  a  partner  to  third  persons,  if  by  the  agreement 
under  Avhich  the  business  is  carried  on,  he  has  an  interest  in  a 
certain  share  of  the  profits  as  profits  and  a  lien  on  the  whole 
profits  as  security  for  his  share ;  Pratt  v.  Langdon,  97  Mass. 
97 ;  12  Allen  546 ;  Holmes  v.  Old  Colony  R.  R.  Co.,  5  Gray  58; 
La  Mont  v.  Fullam,  133  Mass.  583 ;  Pettee  v.  Appleton,  114  Id. 
114 ;  Dame  v.  Kempster,  15  N.  E.  Rep.  927.  See  also  cases  in 
other  states  where  a  somewhat  similar  rule  has  been  adopted. 
Champion  v.  Bostwick,  18  Wend.  175 ;  Reynolds  v.  Hick,  19 
Ind.  113 ;  Sankey  v.  Columbus  Iron  Works,  44  Ga.  228  [a  case 
under  the  code]  ;  Delaney  v.  Dutcher,  23  Minn.  373;  Bradshaw 
V.  Apperson,  36  Tex.  133;  Rowland  v.  Long,  45  Md.  439;  Camp- 
bell V.  Dent,  54  Mo.  325 ;  Bigelow  v.  Elliot,  1  Cliff.  28 ;  Chap- 
line  V.  Conant,  3  W.  Va.  507.  For  criticism  of  this  rule,  see 
Story  on  Part.,  7lli  ed.,  §  49  n.  In  Fitch  v.  Harrington,  13 
Gray  468,  there  was  an  agreement  by  one  partner  with  a  third 
person  that  he  should  share  a  part  of  the  profits  of  the  firm, 


1200  WAUGH    V.    CAKVEK. 

and  the  court  said,  "  An  agreement  between  one  co-partner  and 
a  third  person,  that  he  shall  participate  in  the  profits  of  the  firm, 
as  profits,  renders  him  liable,  as  a  partner,  to  the  creditors  of  the 
firm,  although  as  between  himself  and  the  memljers  of  the  firm 
he  is  not  their  co-partner ;  but  if  such  third  person  by  his  agree- 
ment with  one  member  of  the  firm  is  to  receive  compensation 
for  his  labor,  services,  &c.,  in  proportion  to  the  profits  of  the 
business  of  the  firm,  without  having  any  special  lien  on  the 
profits,  to  the  exclusion  of  other  creditors,  he  is  not  liable  for 
the  debts  of  the  firm."  See  Rockafellow  v.  ]\Iiller,  14  N.  K. 
Rep.  433.  Where  several  persons  signed  articles  of  association, 
intending  to  form  a  corporation,  but  the  association  failed  to 
become  a  corporation  because  the  re({uirements  of  the  statute 
were  not  complied  with,  and  certain  persons  carried  on  the  l)nsi- 
ness  intended  to  be  carried  on  In'  the  corporation  as  agents  of 
the  proposed  coi-poration,  with  knowledge  of  all  the  defendants, 
it  was  held  that  the  defendants  were  not  liable  as  partners, 
whether  they  had  subscribed  for  stock  of  the  proposed  corpora- 
tion or  not,  as  "no  such  relation  was  contemplated  by  any  of 
the  parties  " ;  Ward  v.  Brigham,  127  Mass.  24. 

Neiu  Jcrxei/:  Wild  v.  Davenport,  48  N.J.  L.  129,  follows  Cox 
V.  Hickman. 

3Iissouri :  In  Donnell  r.  Ilarshe,  ()7  Mo.  170,  there  was  an 
agreement  that  one  should  occupy  and  cultivate  a  farm  and  that 
the  crops  should  be  divided  e([ually  between  the  occupant  and 
the  owner.  It  was  held  that  no  partnership  was  necessarily 
created,  as  something  more  than  mere  sharing  of  profits  is  essen- 
tial to  make  a  partnership.  See  also  68  !Mo.  242.  In  Kellog 
Newspaper  Co.  v.  Farrell,  88  Mo.  594,  the  court  quoted  from 
McDonald  v.  Matne}^  82  Mo.  358*  "  That  a  mere  participation 
in  profits  and  loss  does  not  necessarily  constitute  a  partnership 
between  the  parties  so  participating.  ...  It  is  a  question  of 
intention.  .  .  .  Each  case  must  be  determined  upon  its  own 
peculiar  facts."  See  also  Clifton  v.  Howard,  89  Mo.  192.  In 
Kelly  V.  Gaines,  24  Mo.  App.  506,  it  was  held  that  in  oider  to 
create  a  partnership  there  must  not  only  be  a  sharing  of  profits, 
but  each  person  must  have  an  interest  in  the  profits  as  principal 
trader. 

JlicMgan. :  The  later  Michigan  cases  follow  Cox  v.  Hickman, 
and  late  English  cases ;  Beecher  v.  Bush,  45  Mich.  188 ;  Col- 
well  V.  Britton,  59  ^Vlich.  350. 


WAUGH   V.    CARYER.  1207 

Georgia :  The  Code,  §  1890,  provides,  "A  joint  interest  in  the 
partnership  property,  or  a  joint  interest  in  the  profits  and  losses 
of  the  business,  constitutes  a  partnership  as  to  third  persons. 
A  common  interest  in  the  profits  alone  does  not."  See  Dalton 
City  V.  Hawes,  37  Ga.  115 ;  Camp  v.  Montgomery,  75  Ga.  795, 
and  cases  cited. 

Present  American  rule.  — -  Under  the  influence  of  the  severe 
criticism  made  upon  the  I'ule  laid  down  in  Waugh  v.  Carver, 
and  particularly  since  the  case  of  Cox  v.  Hickman,  9  C.  B.  N.  S. 
47,  8  H.  of  L.  C.  268,  30  L.  J.  C.  P.  125,  decided  in  1860,  the 
American  cases  have  very  largely  abandoned  the  doctrine  of 
Waugh  V.  Carver.  The  tendency  of  the  courts  in  this  country 
is  to  hold  that  one  is  not  liable  to  third  persons  as  a  partner 
unless  there  is  a  partnership  inter  sese,  except  where  one  has 
held  himself  out  as  a  partner,  so  that  the  doctrine  of  estoppel 
applies.  In  deciding  whether  there  is  a  partnership  inter  sese 
the  effect  of  the  whole  contract  between  the  parties  must  be 
considered,  and  the  relation  the  parties  have  assumed  to  each 
other  must  be  determined  by  reference  to  all  its  parts.  The 
fact  that  there  is  in  the  contract  an  agreement  to  share  profits 
is  strong,  though  not  conclusive,  evidence  of  partnership,  and 
such  an  agreement  will  establish  the  partnership  in  the  absence 
of  other  controlling  evidence ;  Meehan  v.  Valentine,  29  Fed. 
Rep.  276  ;  In  re  Francis,  2  Sawyer  286 ;  s.  c.  7  Bank.  Reg.  359; 
Be  Ward,  8  Rep.  136 ;  Culley  v.  Edwards,  44  Ark.  423 ;  Le 
Fevre  v.  Castagnio,  5  Col.  564 ;  Vinson  v.  Beveridge,  3  Mac- 
Arthur  (D.  C.)  597  ;  Smith  v.  Knight,  71  111.  148 ;  s.  c.  22  Am. 
Rep.  94;  Williams  v.  Soutter,  7  Iowa  435;  Chaffraix  v.  Laffite, 
30  La.  An.,  Part  1,  631 ;  Beecher  v.  Bush,  45  Mich.  188 ;  s.  c. 
40  Am.  Rep.  465 ;  Kellog  Newspaper  Co.  v.  Farrell,  88  Mo. 
594  ;  Col  well  v.  Britton,  59  Mich.  350  ;  s.  c.  26  N.  W.  Rep.  538 ; 
Parchen  v.  Anderson,  5  Montana,  438 ;  Wild  v.  Davenport,  48 
N.  J.  L.  129 ;  Hart  v.  Kelley,  83  Pa.  St.  286 ;  Boston  &c'.,  Smelt- 
ing Co.  V.  Smith,  13  R.  i.  27 ;  s.  c.  43  Am.  Rep.  3.  In  Be 
Randolph,  1  Out.  App.  315 ;  Sankey  v.  Columbus  Iron  Works, 
44  Ga.  228  (a  case  on  construction  of  the  code)  ;  Eastman  v. 
Clark,  53  N.  H.  276;  Blair  v.  Shaeffer,  33  Fed.  Rep.  218; 
Harvey  v.  Childs,  28  Ohio  St.  319 ;  Clifton  v.  Howard,  89  J\Io. 
192 ;  Kelley  v.  Gaines,  24  Mo.  App.  506  ;  Sailors  v.  Nixon- 
Jones  Printing  Co.,  20  111.  App.  509;  Wilcox  v.  Matthews,  44 
Mich.  192;  Ilolden  v.  French,  68  Me.  241;  Fourth  Nat'l.  Bank 


1208  WAUGH    V.    CAJtV^EU. 

V.  Altheiiuer,  91  Mo.  190.  Sue  also  Darling  v.  Belhouse,  19 
U.  C.  C  B.  2G8.  While  the  fiiet  thiit  one  is  entitled  to  a  .share 
of  the  prolit.s  is  not  eonclusive  evidenee  of  partnership,  yet  it 
has  been  held  that  one  cannot  be  a  partner  unless  he  lias  a 
right  to  share  in  the  profits;  in  other  words,  communion  of 
profits  is  necessary  to  a  partnership ;  Irvin  v.  N.,  C.  &  St.  L.  Ry. 
Co.,  92  111.  108;  Jones  v.  Howard,  .')3  :Miss.  707. 

Cases  where  sharing  profits  does  not  create  partnership.  —  A 
sharing  of  piolits  docs  not  make  one  a  partner,  even  as  regards 
third  persons,  in  the  following  cases. 

Share  of  profits  as  compensation  for  services.  —  A.  Where  a 
share  in  the  profits  is  given  as  com])en.sation  lor  services; 
Buzard  v.  Greenville  Nat'l.  Bank,  67  Tex.  83;  s.  c.  2  S.  W. 
Rep.  54 ;  Mason  v.  Hacket,  4  Nev.  420 ;  Marsh  v.  N.  W.  Nat'l 
Ins.  Co.,  3  BLss.  351;  Donley  v.  Hall,  5  Bush  (Ky.)  549; 
Holmes  v.  Old  Colony  R.  R.  Co.,  5  dray  58;  Bigelow  v.  Elliot, 
1  Cliff.  28;  Vinson  v.  Beveridge,  3  MacArthur  (D.  C.)  597; 
Pierson  v.  Steinmyer,  4  Rich.  L.  300,  319;  Leggett  v.  Hyde,  58 
N.  Y.  272;  Wheeler  v.  Farmer,  38  Cal.  203;  Holden  v.  French, 
68  Me.  241  ;  Parker  v.  Fergus,  43  111.  4:',7  ;  Burton  v.  Good- 
speed,  09  111.  237;  Edwards  v.  Tracy,  (52  Pa.  St.  374;  Muzzy 
V.  Whitney,  10  Johns.  22G ;  McArthur  v.  Ladd,  5  Ohio  St.  514; 
Ellsworth  V.  Pomeroy,  26  Ind.  158 ;  Morrison  v.  Cole,  30  Mich. 
102;  Dale  v.  Pierce,  85  Pa.  St.  474;  Ilolbrook  v.  Obeine,  56 
Iowa  324 ;  Le  Fevre  v.  Castagnio,  5  Col.  564 ;  Shepard  v. 
Pratt,  16  Kan.  209;  Commonwealth  v.  Bennett,  118  Mass.  443; 
Mauney  v.  Colt,  86  N.  C.  463 ;  Newman  v.  Bean,  21  N.  H.  93 ; 
Loomis  V.  Marshall,  12  Conn.  69 ;  Berthold  v.  Goldsmith,  24 
How.  536;  Missouri  &c.,  R.  Co.  v.  Johnson,  7  S.  W.  Rep.  838; 
Randle  v.  State,  49  Ala.  14  ;  Morgan  v.  Stearns,  41  Vt.  398 ;  Wil- 
kinson V.  Gett,  7  Leigh  (Va.)  115 ;  s.  c.  30  Am.  Dec.  493 ;  Price 
V.  Alexander,  2  G.  Greene  (Iowa)  ;  s.  c.  52  Am.  Dec.  526 ;  Day 
V.  Stevens,  88  N.  C.  83;  Chapman  v.  Liscomb,  18  S.  C.  233. 
But  some  cases  have  held  that  if  one  was  entitled  to  a  share  of 
the  profits,  though  it  was  intended  as  compensation  for  ser- 
vices, yet  he  became  of  necessity,  because  of  his  sharing  in 
the  profits,  liable  as  a  partner;  1  A.  K.  Marshall  (Ky.)  181; 
Taylor  v.  Terme,  3  Har.  &  J.  505.  See  also  Rowland  v.  Long, 
45  Md.  439 ;  Strader  v.  White,  2  Neb.  348 ;  Motley  v.  Jones,  3 
Ired.  Eq.  144;  Purviance  v.  McClintee,  6  S.  &  R.  259;  Ditsche 
V.  Becker,  6  Phil.  176  :  Beckwith  v.  Talbot,  2  Col.  639.     An 


WAUGH   V.    CAP.VEE.  1209 

agreement  that  a  person  shall  have  a  part  of  the  profits  as 
salary  will  not  prevent  his  being  held  to  be  a  partner  if  the 
whole  agreement  shows  that  a  partnership  was  intended ; 
Brigham  v.  Clark,  100  Mass.  430. 

Share  of  profits  as  rent. —  B.  Where  a  share  of  the  profits  is 
given  as  rent  or  for  the  use  of  personal  property ;  Bigelow  v. 
Elliot,  1  Cliff.  28 ;  Beecher  v.  Bush,  45  Mich.  188 ;  s.  c.  40  Am. 
Rep.  465;  Holmes  v.  Old  Colony  R.  R.  Co.,  5  Gray  58;  McDon- 
ald V.  Battle  House  Co.,  67  Ala.  90;  s.  c.  42  Am.  Rep.  99; 
Quackenbush  v.  Sawyer,  54  Cal.  439 ;  Parker  v.  Fergus,  43  111. 
437.  See  Smith  v.  Vanderburg,  46  Id.  34,  where  a  portion  of 
the  profits  was  given  as  compensation  for  a  secret  and  for  stock 
on  hand ;  Keiser  v.  State,  58  Ind.  379 ;  Reed  v.  Murphy,  2  G. 
Greene  (Iowa)  574 ;  Thompson  v.  Snow,  4  Me.  264 ;  s.  c.  16 
Am.  Dec.  263,  a  case  where  a  vessel  was  let.  See,  also,  57  Id. 
543 ;  Thayer  v.  Augustine,  55  Mich.  187 ;  Ferine  v.  Hankieson, 
11  N.  J.  L.  181 ;  Heimstreet  v.  Howland,  5  Den.  68,  where  a 
ferry  was  let  for  part  of  the  profits  ;  Johnson  v.  Miller,  16  Ohio 
431  ;  Irwin  v.  Bidwell,  72  Pa.  St.  244,  251 ;  Brown  v.  Jaquette, 
94  Id.  113 ;  s.  c.  39  Am.  Rep.  770 ;  England  v.  England,  1  Bax- 
ter 108  ;  Tobias  v.  Blin,  21  Vt.  544 ;  Felton  v.  Deall,  22  Id.  170  ; 
Bowyer  v.  Anderson,  2  Leigh  (Va.)  550 ;  Chapline  v.  Conant, 
3  W.  Va.  507  ;  Haydon  v.  Crawford,  3  U.  C.  Q.  B.  (old  ser.) 
583  ;  Hawley  v.  Dixon,  7  U.  C.  Q.  B.  218;  Great  Western  Ry. 
Co.  V.  Breston  &  Berlin  Ry.,  17  Id.  477  ;  La  Mont  v.  FuUam, 
133  Mass.  583.  But  see  contra,  Dalton  City  Co.  v.  Dalton 
Manf.  Co.,  33  Ga.  243 ;  Holifield  v.  White,  52  Ga.  567 ;  Adams 
V.  Carter,  53  Id.  160. 

Share  of  profits  as  interest.  —  C.  Where  a  share  of  the  jDrofits 
is  given  as  interest ;  Neihoff  v.  Dudley,  40  111.  406 ;  Smith  v. 
Vanderberg,  46  Id.  34 ;  Lintner  v.  Milliken,  47  111.  178 ;  Eshle- 
man  v.  Harnish,  76  Pa.  St.  97.  [See  Pa.  Statute,  supra.^  But 
some  cases  following  the  earlier  English  decisions  hold  that  one 
who  takes  a  share  of  the  profits  as  interest,  thereby  becomes  lia- 
ble as  a  partner  to  third  persons.  Sheridan  v.  Medara,  10  N.  J. 
Eq.  469 ;  Pierson  v.  Steinmyer,  4  Rich.  L.  309  ;  Wood  v.  Valette, 
7  Oliio  St.  172 ;  Parker  v.  Canfield,  37  Conn.  250 ;  McDonald  v. 
Millandon,  5  La.  403 ;  Rosenfield  v.  Haight,  53  Wis.  260.  In 
Sheridan  v.  Medara  and  Pierson  v.  Steinmyer,  supra,  the  partner- 
ship was  held  to  be  created  when  the  contract  was  usurious.  But 
it  has  been  held  that  a  partnership  will  not  be  inferred  because 


1210  WAUtMl    V.    CAKVER. 

a  contract  for  interest  is  usurious.  Plunkett  v.  Dillon,  4  Del. 
Ch.  198 ;  Richards  v.  Hughitt,  70  N.  Y.  55 ;  s.  e.  82  Am.  Rep. 
267 ;  Irwin  v.  Bidwell,  72  Pa.  St.  244.  An  excessive  share  of 
the  profits  has,  however,  been  held  to  create  a  partnership  ; 
Kargrave  v.  Conroy,  19  N.  J.  Eq.  281  ;  Oppenheinier  v.  Cleni- 
mons,  18  Fed.  Rep.  886;  Brigham  v.  Dana,  29  Vt.  1,  9 ;  72e 
Francis,  2  Sawy.  286;  s.  c.  7  Bank.  Reg.  359;  I'arker  v.  Can- 
field,  37  Conn.  250;  s.  c.  9  Am.  Rep.  317.  In  order  that  a 
share  of  the  profits  as  interest  should  not  create  a  partnership, 
there  should  be  a  hand  fide  loan  which  is  to  be  repaiil  in  any 
event;  Harris  v.  Ilillegass,  54  Cal.  463;  Wood  v.  Valette,  7 
Ohio  St.  172;  Brigham  v.  Dana,  29  Vt.  1,  9;  Rosenfield  v. 
Haight,  53  Wis.  260 ;  s.  c.  40  Am.  Rep.  770.  If  the  loan  is  a 
mere  device  to  avoid  the  liability  of  partnership,  then  tlie  parties 
will  be  held  to  be  ])artners  :  In  Re  Francis,  2  Sawy.  286. 

Share  of  profits  from  funds  left  in  business. —  I).  Where  lega- 
tees receive  profit«  from  funds  left  in  a  business,  by  order  of 
testator,  they  do  not  become  liable  for  the  debts  of  the  business; 
Jones  V,  Walker,  103  U.  S.  444;  Pitkin  v.  Pitkin,  7  Conn.  307; 
s.  c.  18  Am.  Dec.  111.  See  Heighe  v.  Littig,  63  Md.  391  ; 
Phillips  V.  Samuel,  76  Mo.  •)57. 

But  where,  under  partneiship  articles,  in  case  of  the  death  of 
one  partner  his  childien  were  to  succeed  to  his  interest  until 
the  expiration  of  the  partnership  contract,  and  they  did  so 
succeed,  on  their  father's  death,  it  was  held  that  they  became 
liable  to  creditors  as  partners  ;  Nave  v.  Sturges,  5  Mo.  App.  557. 

Agreement  that  losses  shall  not  be  shared. —  Where  there  is 
an  agreement  to  share  profits,  the  niere  fact  there  is  an  agree- 
ment that  a  certain  person  is  not  to  share  losses  does  not  relieve 
him  from  liability  as  a  partner  as  to  third  persons  if  otherwise 
the  contract  shows  him  to  be  such ;  Pollard  v.  Stanton,  7  Ala. 
761 ;  Camp  v.  Montgomery,  75  Ga.  795 ;  Consolidated  Bk.  v. 
State,  5  La.  Ann.  44 ;  Robbins  v.  Laswell,  27  111.  365 ;  Rowland 
V.  Long,  45  Md.  439 ;  Bank  of  Rochester  v.  Monteath,  1  Den. 
402 ;  Walden  v.  Sherburne,  15  Johns.  409.  See,  also,  Clift  v. 
Barrow,  15  N.  E.  Rep.  327.  Contra,  Whitehill  v.  Shickle,  43 
Mo.  537. 

Holding  out  as  partner.  —  As  has  already  been  intimated,  one 
who  has  held  himself  out  as  a  partner  or  allowed  himself  to  be 
so  held  out  is  liable  as  a  partner,  though  as  a  matter  of  fact 
he  was  not  actually  a  partner ;  Smith  v.  Hill,  45  Vt.  90 ;  Stim- 


WAUGH    Y.    CAEVER.  1211 

son  V.  Whitney,  130  Mass.  591 ;  Dailey  v.  Coons,  64  Ind.  545 ; 
Carmichael  v.  Greer,  55  Ga.  116 ;  Cothill  v.  Van  Duzen,  22  Vt. 
511;  In  re  Jewett,  15  N.  B.  R.  126. 

But  "  one  who  had  no  knowledge  or  belief  that  the  defendant 
was  held  out  as  a  partner,  and  did  nothing  on  the  faith  of  such 
knowledge  or  belief,  cannot  charge  him  with  liability  as  a  part- 
ner, if  he  was  not  a  partner  in  fact "  ;  Thompson  v.  First  Nat'l 
Bk.,  Ill  U.  S.  529. 

Effect  of  whole  agreement  considered.  —  If  the  whole  agree- 
ment shows  the  parties  to  have  assumed  the  relation  of  partners, 
there  will  be  held  to  be  a  partnership  though  the  parties  did 
not  intend  to  be  partners,  and  even  though  they  had  provided 
that  they  were  not  to  be  so  considered ;  Haas  v.  Root,  26  Hun 
632 ;  Rosenfield  v.  Haight,  53  Wis.  260 ;  Cooley  v.  Broad,  29 
La.  An.  345. 

But  an  agreement  that  there  shall  be  no  partnership  has  been 
held  valid  between  the  parties ;  Gill  v.  Kuhn,  6  S.  &  R.  338, 
338 ;  Jordan  v.  Wilkins,  3  Wash.  C.  Ct.  110.  And  also  against 
third  persons  who  had  knowledge  of  the  agreement ;  Hastings 
V.  Hopkinson,  28  Vt.  108 ;  Chapman  v.  Devereux,  32  Id.  616, 
623.     See,  also,  Baily  v.  Clark,  6  Pick.  372. 


CUTTER    V.   POWELL. 


TRINITY— m  (iEO.:\. 
[reported  G  t.  k.  320.] 

If  a  sailor  hired  for  a  voyage  take  a  promi88ory  note  from  his 
employer  for  a  certain  sum,,  provided  he  proceed,  continue,  and 
do  his  duty  on  hoard  for  the  voyage,  and  htfore  the  arrival  of 
the  ship  he  dies,  no  tvayes  can  be  claimed  either  on  the  contract 
or  on  a  quantum  meruit. 

To  assumpsit  for  work  and  labour  done  by  the  intestate,  tlie 
defendant  pleaded  the  general  issue.  And  at  the  trial  at  Lan- 
caster, the  jury  found  a  verdict  for  the  plaintiff  for  31/.  10s., 
subject  to  the  opinion  of  this  court  on  the  following  case :  — 

The  defendant  being  at  Jamaica,  subscribed  and  delivered  to 
T.  Cutter,  the  intestate,  a  note,  whereof  the  following  is  a  copy: 
"  Ten  days  after  the  ship  Governor  Parry,  myself  master,  arrives 
at  Liverpool,  I  promise  to  pay  to  Mr.  T.  Cutter  the  sum  of 
thirty  guineas,  provided  he  proceeds,  continues,  and  does  his 
duty,  as  second  mate,  in  the  said  ship  from  hence  to  the  port 
of  Liverpool.  Kingston,  July  31st,  1793."  The  ship  Governor 
Parry  sailed  from  Kingston  on  the  2nd  of  August,  1793,  and 
arrived  in  the  port  of  Liverpool  on  the  9th  of  October  follow- 
ing. T.  Cutter  went  on  board  the  ship  on  the  31st  of  July, 
1793,  and  sailed  in  her  on  the  2nd  day  of  August,  and  pro- 
ceeded, continued,  and  did  his  duty  as  second  mate  in  her 
from  Kingston  until  his  death,  which  happened  on  the  20th  of 
September  following,  and  before  the  ship's  arrival  in  the  port 
of  Liverpool.  The  usual  wages  of  a  second  mate  of  a  ship  on 
such  a  voyage,  when  shipped  by  the  month  out  and  home,  is 
four  pounds  per  month ;  but  when  seamen  are  shipped  by  the 
run  from  Jamaica  to  England,  a  gross  sum  is  usually  given. 

1212 


CUTTER    V.    POWELL.  1213 

The  usual  length  of  a  voyage  from  Jamaica  to  Liverpool  is 
about  eight  weeks. 

This  was  argued  last  term  b}-  J.  Hayu'ood  for  the  plaintiff, 
but  the  court  desired  the  case  to  stand  over,  that  inquiries 
might  be  made  relative  to  the  usage  in  the  commercial  world 
on  these  kinds  of  agreements.  It  now  appeared  that  there  was 
no  fixed  settled  usage  {a)  one  way  or  the  other ;  but  several 
instances  were  mentioned  as  having  happened  within  these 
two  years,  in  some  of  which  the  merchants  had  paid  the  whole 
wages  under  circumstances  similar  to  the  present,  and  in  others 
a  proportionable  part.     The  case  was  now  again  argued  by 

Chamhre  for  the  plaintiff,  and  Wood  for  the  defendant. 

Arguments  for  the  plaintiff.  —  The  plaintiff  is  entitled  to 
recover  a  proportionable  part  of  the  wages  on  a  quantum  meruit, 
for  work  and  labour  done  by  the  intestate  during  that  part  of 
the  voyage  that  he  lived  and  served  the  defendant ;  as  in  the 
ordinary  case  of  a  contract  of  hiring  for  a  year,  if  the  servant 
die  during  the  year,  his  representatives  are  entitled  to  a  pro- 
portionable part  of  his  wages.  If  any  defence  can  be  set  up 
against  the  present  claim,  it  must  arise  either  from  some  known 
general  rule  of  law  respecting  marine  service,  or  from  the 
particular  terms  of  the  contract  between  these  parties.  But 
there  is  no  such  rule  applicable  to  marine  service  in  general  as 
will  prevent  the  plaintiff's  recovering,  neither  will  it  be  found, 
on  consideration,  that  tliere  is  anything  in  the  terms  of  this 
contract  to  defeat  the  present  claim.  It  is  indeed  a  general 
rule  that  freight  is  the  mother  of  Avages  (/>)  ;  and  therefore  if 
the  voyage  be  not  performed,  and  the  owners  receive  no  freight, 
the  sailors  lose  their  wages ;  though  that  has  some  exceptions 
where  the  voyage  is  lost  by  the  fault  of  the  owners,  as  if  the 
ship  be  seized  for  a  debt  of  the  owners,  or  on  account  of  having 
contraband  goods  on  board :  in  either  of  which  cases  the  sail- 
ors are  entitled  to  their  wages,  though  the  voyage  be  not  per- 
formed. Vin.  Abr.  "Mariners,"  235.  But  here  the  rule  itself 
does  not  apply,  the  voyage  having  been  performed,  and  the 

(a)  See  the  notes  to  Wigglesworth  on  the  earninc:  of  freight.     See  The 

V.  DaUison,  ante,  vol.  i.  Mercliant   Shipping  Act,  1854  (17  & 

(6)   See,  on  that  .subject.  Appleby  18  Vict.  c.   104),   s.   183.      The   rule 

V.  Dods,  3  East,  300;   The  Neptune,  1  mentioned  in  the  text  never  applied 

Hagg.  227.     [The  right  of  a  seaman  to  the  wages  of  the  master.    Hawkins 

to  wages  is  now  no  longer  dependent  v.  Twizell,  H  E.  &  B.  883.J 


1214  CrTTKK    \.    I'nWKLL. 

owners  having  earned  their  ftei<j;:lii.  There  is  also  another 
general  rule,  that  if  a  sailor  desert,  he  sliall  lose  his  \viiges(<j>; 
but  that  is  founded  upon  puhlie  j)olu y,  and  was  introtluee<l  as 
a  means  of  {)reserving  the  shij).  Hut  that  rale  cannot  apply  to 
this  case  ;  for  there  the  sailor  forfeits  his  wages  hy  his  own 
wrongful  act,  whereas  here  the  seaman  was  prevented  eoni- 
pleting  his  contract  by  the  act  f)f  (lod.  So  if  a  mariner  i)o 
impressed,  he  does  not  forfeit  his  wages;  for  in  Wi<jijin»  v. 
In<ih't()H  (/>),  Lord  Holt  held,  that  a  seaman,  who  was  impressed 
before  the  ship  returned  to  tiie  port  of  delivi-ry,  might  recover 
wages  jwro  tanto.  Neither  is  there  anything  in  the  terms  of  this 
contract  to  prevent  the  [daintiff's  recovering  on  a  ijuuHtum 
meruit.  The  note  is  a  set-urity,  and  not  an  agreement ;  it  is  in 
the  form  of  a  promissory  note,  and  was  given  by  the  master  of 
the  ship  to  the  intestate  to  secure  the  jiayment  of  a  gross  sum 
of  money,  on  condition  that  tiie  intestate  should  Ihj  able  to,  and 
should  aitually,  perform  a  given  duty.  The  condition  was 
inserted  to  i)revent  tiie  desertion  of  the  intestate,  and  to  ensure 
his  good  I'onduct  during  the  voyage.  And  in  cases  of  this 
kind,  the  contract  is  to  be  construed  liberally.  In  Edinirth  v. 
CJillif  (r),  where  the  mariners  had  given  bonds  to  the  ICast 
India  Company  not  to  demand  their  wagi's  unless  the  ship 
leturned  to  the  port  of  London,  it  was  held  that  as  the  ship 
had  saiU'd  to  India,  and  had  there  delivered  her  outward-bound 
cargo,  the  mariners  were  entitled  to  their  wages  on  the  outward- 
bound  voyage,  though  the  ship  was  taken  on  her  return  to 
England.  This  note  cannot  be  construed  literally,  for  then 
the  intestate  would  not  have  been  entitled  to  anything,  though 
he  had  lived  and  continued  on  board  during  the  whole  voyage, 
if  he  had  been  disabled  by  sickness  from  performing  his  duty. 
But  even  if  this  is  to  be  considered  as  a  contract  between  the 
parties,  and  the  words  of  it  are  to  be  construed  strictly,  still 
the  plaintiff  is  entitled  to  recover  on  a  quantum  meruit,  because 
that  contract  does  not  apply  to  this  case.  The  note  was  given 
for  a  specific  sum  to  be  paid  in  a  given  event ;  but  that  event 
has  not  happened,  and  the  action  is  not  brought  on  the  note. 
The  parties  provided  for  one  particular  case :  but  there  was  no 
express  contract  for  the  case  that  has  happened ;  and  therefore 
the    plaintiff   may   resort   to    an    undertaking  which    the    law 

(ffl)   [See  Edward  v.   Trevethick,   4  {h)  2  Lord  Kaym.  1211. 

E.  &  B.  59.]  (c)   2  Vern.  727. 


CUTTER    Y.    POWELL. 


1215 


implies,  on  a  quantum  meruit  for  work  and  labour  done  by  the 
intestate.  For  though,  as  the  condition  in  the  note  which  may 
be  taken  to  be  a  condition  precedent,  was  not  complied  with, 
the  plaintiff  cannot  recover  the  sum  which  was  to  have  been 
paid  if  the  condition  had  been  performed  by  the  intestate,  there 
is  no  reason  why  the  representative  of  the  seaman,  who  per- 
formed certain  services  for  the  defendant,  should  not  recover 
something  for  the  work  and  labor  of  the  intestate,  in  a  case  to 
which  the  express  contract  does  not  apply. 

Aro-uments   on  behalf   of   the   defendant.  —  Nothing  can  be 
more^'clearly  established  than  that  where  there  is  an  express 
contract  between  the  parties,  they  cannot  resort  to  an  implied 
one.     It  is  only  because  the  parties  have  not  expressed  what 
their  agreement  was,  that  the   law  implies   what  they  would 
have  agreed  to  do  had  they  entered  into  a  precise  treaty ;  but 
when  once  they  have  expressed  what  their  agreement  was,  the 
law  will  not  imply  any  agreement  at  all.     In  this  case  the^  in- 
testate and  the  defendant  reduced  their  agreement  into  writing, 
by  the  terms  of  which  they  must  now  l)e  bound.     This  is  an 
entire  and  indivisible  contract ;  the  defendant  engaged  to  pay 
a  certain  sum  of  money,  provided  the   intestate   continued  to 
perform  his  duty  during  the  whole  voyage ;  that  proviso  is  a 
condition  precedent  to  the  intestate  or  his  representative  claim- 
ing the  money  from  the   defendant,  and  that   condition    not 
having  been  performed,  the  plaintiff  cannot  now  recover  any- 
thing.''   If  the  parties  had  entered  into  no  agreement,  and  the 
inte5:ate  had  chosen  to  trust  to  the  wages  that  he  would  have 
earned  and  might  have  recovered  on   a  quantum   meruit,  he 
would  only  have  been  entitled  to   eight  pounds;  instead  of 
which,  he   expressly  stipulated  that  he  should  receive  thirty 
guineas,  if  he  continued  to  perform  his   duty  for  the   whole 
voyage.     He  preferred  taking  the  chance   of  earning  a  large 
sum,  in  the  event  of  his  continuing  on  board  during  the  whole 
voyage,  to  receiving  a  certain,  but  smaller  rate  of  wages  for 
the  time  he  should  actually  serve  on  board ;  and  having  made 
that  election,  his  representative  must  be  bound  by  it.     In  the 
common  case  of  service,  if  a  servant  who  is  hired  for  a  year  die 
in  the  middle  of  it,  his  executor  may  recover  part  of  his  wages 
in  proportion  to  the  time  of  service  (a)  ;  but  if  the  servant 

(a)  The   old  law  was    otherwise;       "Contract,"   pi.   31;    and    Worth  v. 
Vid.  Bro.  Abr.  "  Apportionment,"  pi.        Viner,  3  Vin.  Abr.  S  and  9. 
13;     ib.    "Labourers,"    pi.    48;     ib. 


1210  CITTKU    V.    I'OWKI.L. 

aj]freed  to  receive  a  larger  sum  than  tht-  ordinary  rate  of  wages, 
on  the  express  condition  of  his  serving  the  whoK'  year,  his 
executor  would  not  he  entitled  to  any  part  of  such  wages  in 
tlie  event  of  the  servant  dying  before  the  expiration  of  the 
year.  The  title  to  marine  wages  by  no  means  depends  on  the 
owners  l)eing  entitle(l  to  ficight ;  for  if  the  sailors  desert,  or  do 
not  perform  their  duty,  they  are  not  entitled  to  wages  though 
the  owners  earn  the  freight.  Nor  is  it  conclusive  agjiinst  the 
dcfeinlant  that  the  intestate  was  prevented  fullilling  his  eon- 
tract  by  the  act  of  God;  for  the  same  reason  would  apply  to 
the  loss  of  a  shij),  which  m;;}'  eijually  happen  by  the  act  of  Clod, 
Mini  without  any  default  in  the  sailors  ;  and  yet  in  that  ease  the 
sail<»rs  lose  their  wages.  Hut  there  are  other  cases  that  l)ear 
ciiually  hard  upon  contrai-ting  parties,  and  in  which  an  inno- 
cent person  must  suiTcr,  if  the  terms  of  his  contract  recpiire 
it;  f'.//.,  the  ti'uant  of  a  Ikuisc  who  covenants  to  pay  rent,  ami 
who  is  bound  to  continue  j)aying  tin-  rent,  though  the  house 
be  burned  (h)wn  (</)•  (I^oid  h'rni/on,  ("h.  .1.  liut  that  nuist 
be  taken  with  some  qualilication :  for  where  an  acti(»n  was 
brought  for  rent  after  the  house  was  burned  down,  and  the 
tenant  applied  to  the  Court  of  rhancery  for  an  injunction. 
Lord  C.  Xorthhujton  said  that  if  the  tenant  would  give  up  his 
lease,  he  should  not  be  bound  to  pay  the  rent  ('>).)  With  re- 
gard to  the  case  cited  from  '1  Lord  Kaym.,  the  case  of  a  mariner 
impressed  is  an  excepted  case,  and  the  reason  of  that  decision 
was  fountled  on  principles  of  public  policy. 

Lord  Kcni/on,  C.  J.  —  I  should  1x3  extremely  sorry  that,  in 
the  decision  of  this  case,  we  should  determine  against  what  has 
been  the  received  opinion  in  the  mercantile  world  on  contracts 
of  this  kind,  because  it  is  of  great  importance  that  the  laws  by 
which  the  contracts  of  so  numerous  and  so  useful  a  body  of 
men  as  the  sailors  are  supposed  to  be  guided,  should  not  be 
overturned.  Whether  these  kind  of  notes  are  much  in  use 
among  the  seamen  we  are  not  sufliciently  informed ;  and  the 
instances  now  stated  to  us  from  Liverpool  are  too  recent  to 
form  anything  like  usage.  But  it  seems  to  me  at  present  that 
the  decision  of  this  case  may  proceed  on  the  particular  words 

(rt)  Vide  Bel/our  v.   Weston,  ante.  overruled.      Hare  v.   Groves,  3  Anst. 

1  T.  R.  310.  687.      Holtzapffel   v.   Baker,    18   Ves. 

(6)  Vide  Broicn  v.  QuiKer,  Amh\.  115.     See  Bullock  \.  Domniitt,  G  T.li. 

G19.     This  doctrine  is,  however,  now  650. 


CUTTER    V.    rOWELL.  1217 

of  this  contract  and  the  precise  facts  here  stated,  without 
touching  marine  contracts  in  general.  That  where  the  parties 
have  come  to  an  express  contract  none  can  be  implied,  has 
prevailed  so  long  as  to  be  reduced  to  an  axiom  in  the  law. 
Here  the  defendant  expressly  promised  to  pay  the  intestate 
thirty  guineas,  provided  he  i^oceeded^  coyitmued  and  did  his 
duty  as  second  mate  in  the  ship  from  Jamaica  to  Liverpool ; 
and  the  accompanying  circumstances  disclosed  in  the  case  are, 
that  the  common  rate  of  wages  is  four  pounds  per  month, 
when  the  party  is  paid  in  proportion  to  the  time  he  serves,  and 
that  this  voyage  is  generally  performed  in  two  months.  There- 
fore, if  there  had  been  no  contract  between  these  parties,  all 
that  the  intestate  could  have  recovered  on  a  quantum  vieruit 
for  the  voyage  would  have  been  eight  pounds ;  whereas  here 
the  defendant  contracted  to  pay  thirty  guineas,  provided  the 
mate  continued  to  do  his  duty  as  mate  during  the  whole  voy- 
age, in  which  case  the  latter  would  have  received  nearly  four 
times  as  much  as  if  he  were  paid  for  the  number  of  months  he 
served.  He  stipulated  to  receive  the  larger  sum  if  the  whole 
duty  were  performed,  and  nothing  unless  the  Avhole  of  that 
duty  were  performed:  it  was  a  kind  of  insurance.  On  this 
particular  contract  my  opinion  is  formed  at  present;  at  the 
same  time  I  must  say,  that  if  we  were  assured  that  these  notes 
are  in  universal  use,  and  that  the  commercial  world  have  re- 
ceived and  acted  upon  them  in  a  different  sense,  I  should  give 
up  my  own  opinion. 

Ashurst,  J.  —  We  cannot  collect  that  there  is  any  custom 
prevailing  among  merchants  on  these  contracts ;  and  therefore 
we  have  nothing  to  guide  us  but  the  terms  of  the  contract 
itself.  This  is  a  written  contract,  and  it  speaks  for  itself. 
And  as  it  is  entire,  and  as  the  defendant's  promise  depends  on 
a  condition  precedent  to  be  performed  by  the  other  party,  the 
condition  must  be  performed  before  the  other  party  is  entitled 
to  receive  anything  under  it.  It  has  been  argued,  however, 
that  the  plaintiff  ma}^  now  recover  on  a  quantum  meruit ;  but 
she  has  no  right  to  desert  the  agreement ;  for  wherever  there 
is  an  express  contract  the  parties  must  be  guided  by  it,  and  one 
party  cannot  relinquish  or  abide  by  it  as  it  may  suit  his  advan- 
tage. Here  the  intestate  was,  by  the  terms  of  his  contract,  to 
perform  a  given  duty,  before  he  could  call  upon  the  defendant 
to  pay  him  anything :  it  was   a   condition   precedent   without 


1218  CUTTKK    V.    roWELL. 

j)erf()rming  whicli  tlic  dt  ri'iidiiiit  is  lujt  lijihli-.  Aiul  that  Hcems 
to  me  to  concludt'  tin*  (lucstion:  the  intestate  did  not  perform 
the  i(nitract  on  his  part ;  he  was  not  iiuU-eil  to  bhinie  for  not 
doiiij^  it;  hilt  still,  as  this  was  a  condition  [)reet'dent,  antl  as  lie 
did  not  ju  1  t'oiiii  it,  his  representative  is  not  t-ntith-d  to  rei-over. 
Grotfi,  .i.  —  In  this  case  the  plaintifl'  nuist  either  recover  on 
the  particnlar  stipulation  hetween  the  parties,  or  on  ^onie  j^en- 
eral  kii(»wn  rule  of  law,  the  latter  of  which  has  not  been  much 
relied  ujjon.  1  have  looke<l  into  the  laws  of  Oleron ;  and  I 
have  seen  a  late  case  on  this  subject  in  the  Court  of  Common 
Pleas,  Vhanilh-r  \.  Greavex  (a).  I  have  also  inipiired  into  the 
j)raetiee  of  the  merchants  in  the  eity,  anil  have  Inren  informed 
that  these  contiacts  are  not  considereil  as  divisible,  and  that 
the  seaman  nnist  perform  the  voyage,  otherwise  he  is  not 
entitled  to  hi>;  wages;  tlu)Ugh  I  must  add  that  the  result  of  my 
iM(|uiries  has  not  been  perfeitly  satisfactory,  ami  therefore  I 
(U)  not  rely  upon  it.  Tlu-  laws  of  Oleron  are  extremely  favour- 
able to  the  seaman  ;  so  much  so,  that  if  a  sailor,  who  has  agreed 
for  a  voyage,  be  taken  ill  and  put  on  shore  before  the  voyage 
is  completed,  he  is  nevertheless  entitleil  to  his  whole  wages, 
after  deducting  what  has  been  laid  out  for  him.  In  the  ea.se 
of  Chandler  v.  Greaves,  where  the  jury  gave  a  verdict  for  the 
whole  wages  to  the  plaintiff,  who  was  j)ut  on  shore  on  account 
of  a  broken  leg,  the  court  refused  to  grant  a  new  trial,  though 
I  do  not  know  tlu'  precise  grounds  on  which  the  court  pro- 
ceeded. Howevi'r,  in  this  case  the  agreement  is  conclusive; 
the  defendant  only  engageil  to  pay  the  intestate  on  condition 
of  his  continuing  to  do  his  duty  i»n  board  during  the  whole 
voyage ;  and  the  latter  w;is  to  be  entitled  either  to  thirty 
guineas  or  to  nothing,  for  such  was  the  contract  between  the 
parties.  And  when  we  recollect  how  large  a  i)rice  was  to  be 
given  in  the  event  of  the  mate  continuing  on  board  during  the 
whole  voyage,  instead  of  the  small  sum  which  is  usually  given 
per  month,  it  may  faiily  be  considered  that  the  parties  them- 
selves understood  that  if  the  whole  duty  were  performed  the 
mate  was  to  receive  the  whole  sum,  and  that  he  was  not  to 
receive  anything  unless  he  did  continue  on  board  during  the 
whole  voyage.  That  seems  to  me  to  be  the  situation  in  which 
the  mate  chose  to  put  himself;  and  as  the  condition  was  not 

(a)   Hil.  32  G.  3,  C  B. 


CUTTEK    V.    POWELL.  1219 

complied  with,  his  representative  cannot  now  recover  anything. 
I  believe,  however,  that  in  point  of  fact,  these  notes  are  in  com- 
mon use,  and  perhaps  it  may  be  prudent  not  to  determine  this 
case  until  we  have  inquired  whether  or  not  there  has  been  any 
decision  upon  them. 

Lawrence^  J. —  If  we  are  to  determine  this  case  according  to 
the  terms  of  the  instrument  alone,  the  plaintiff  is  not  entitled 
to  recover,  because  it  is  an  entire  contract.     In  Salk.  65,  there 
is  a  strong  case  to  that  effect ;  there,  debt  was  brought  upon  a 
writing  by  which  the  defendant's  testator  had  appointed  the 
plaintiff's  testator  to  receive  his  rents,  and  promised  to  pay  him 
100/.  per  annum  for  his  service ;  the  plaintiff  showed  that  the 
defendant's  testator  died  three  quarters  of  a  year  after,  during 
which  time  he  served  him,  and  he  demanded  75Z.  for  three  quar- 
ters :  after  judgment  for  the  plaintiff  in  the  Common  Pleas,  the 
defendant  brought  a  writ  of  error,  and  it  was  argued  that  with- 
out a  full  year's  service  nothing  could  be  due,  for  that  it  was  in 
nature  oi  a  condition  precedent ;  that  it  being  one  consideration 
and  one  debt,  it  could  not  be  divided :  and  this  court  were  of 
that  opinion,  and  reversed  the  judgment.     With  regard  to  the 
common  case  of  a  hired  servant,  to  which  this  has  been  com- 
pared ;  such  a  servant,  though  hired  in  a  general  way,  is  con- 
sidered to  be  hired  with  reference  to  the  general  understanding 
upon  the  subject,  that  the  servant  shall  be  entitled  to  his  wages 
for  the  time  he  serves,  though  he  do  not  continue  in  the  service 
during  the  Avhole  year.     So  if  the  plaintiff  in  this  case  could 
have  proved  any  usage  that  persons  in  the  situation  of  this  mate 
are  entitled  to  wages  in  proportion  to  the  time  they  served,  the 
plaintiff  might  have  recovered  according  to  that  usage.     But  if 
this  is  to  depend  altogether  on  the  terms  of  the  contract  itself, 
she  cannot  recover  anything.     As  to  the  case  of  the  impressed 
man,  perhaps  it  is  an  excepted  case ;  and  I  believe  that  in  such 
cases  the  king's  officers  usually  put  another  person  on  board  to 
supply  the  place  of  the  impressed  man  during  the  voyage,  so 
that  the  service  is  still  performed  for  the  benefit  of  the  owners 

of  the  ship. 

Postea  to  the  defendant. 

Unless  some  other  information  relative  to  the  usage  in  cases  of 

this  kind  should  be  laid  before  the  court  before  the  end  of  this 

term :  but  the  case  was  not  mentioned  again. 


lliliO  CL'TTEU     V.    I'OWKLL. 


Fkw  (|iw.siiniis  nro  of  •*>>  fri<nifiit  occuiTfnc-i',  i>r  <>f  ho  much  practical 
iinportuiKf,  niul  at  the  saiiii-  time  .so  (lllllLult  to  solve.  a.s  tlioM*  In  wlilcli  thu 
dispute  is,  whether  an  action  can  be  hrou;;ltt  by  one  who  has  enter.  .1  int.i  a 
Hpecial  contract,  part  o(  whlcli  remains  unperforme«l. 

We  tlud  it  laiil  down  in  tlie  treatises,  that,  in  certain  cases,  the  |Mii.,,tii- 
ance  of,  or  reatliness  to  perform,  «Mie  slile  <»f  the  contract  Is  a  condition  pre- 
cedent to  tile  ri;;lit  to  dennind  performance  of  tlie  otiier  side.  An«i  rules  are 
jfiven  in  tlie  text-bo(»ks  for  the  purpose  <>(  enal)lint;  us  to  distlni;ui>h  these 
cases  from  anotlier  class,  in  wlii<-h  no  sucli  conditiim  exists.  Iiut  tRe  con- 
tractors are  Ixiunil  by  nuituai  independent  covenants  or  promises.  (See  the 
n«)tes  to  I'urilaijK  v.  (.%/<■,  1  Wms.  Sainnl.  ."»4.s,  and  to  I'eeUra  v.  0/<iV,  2  Wms. 
Saund.  742,  Ed.  1871.) 

We  lliid  It  also  laid  down,  that  no  action  of  inilrhitntu*  OMumpait,  or  upon  a 
quit  Hi  •an  iitfrnit.  can  be  broutfht  for  anything;  done  under  a  special  agreement 
wliich  remains  open;  (•ordnn  v.  Murtin,  Fitz!{il)b.  'M)'A\  HuUf  v.  llriijhtmitn,  2 
Kast,  14.") :  liut  that,  where  the  terms  of  tin*  spi-clal  ai;reement  have  luren  per- 
formed on  one  side,  ami  nothini;  is  to  be  done  upon  llie  nther  but  a  money 
payment,  such  payment  may  be  enforced  l)y  an  action  of  iinUhit<HH»  it»»uinpait. 
Conhi-  v.  Mnnatnnr.  \  H.  i  1*.  N.  ;Cil  ;  \\  N.  \\  i:Jl»;  Ali-nrnf  v.  WetUhronkf,  1 
Wils.  117;  CliiU>rl>nrk-  v.  Ci>ffln,  l\  M.  &  ii.  hU;  see  Ituinrhi  v.  Sash,  1  M.  &. 
W.  ■>4.'»,  and  per  Tiuiial,  C.  J.,  In  (iria»tU  v.  liuhinunn,  3  BluR.  N.  C.  H>-15, 
citeil  in  SrnU  v.  PurkiT,  1  Q.  B.  H|0,  where  It  was  lieUI  that  the  non-perfonn- 
ance  of  astipulation,  not  Ih-Iu^  a  condition  precetlent  to  repayment,  was  no 
objection  to  an  action  of  inilrhitnliin  ii.tituiitjtuil,  for  money  lent. 

We  also  lintl  that  there  are  some  cases  in  which  work  has  Iwen  done,  or 
^oods  sup|)lied.  under  a  special  a^reenu-nt,  but  not  in  conformity  tliereto, 
and  yet  the  payment  of  a  com|)ensation^  is  enforced  l)y  action.  i)ecause  the 
defendant  lias  retained  and  enjoyed  tin'  bent-lit  of  that  whicli  actually  was 
done.  FuniKiriirth  v.  (liirntnL  1  Camp.  ;?s.  IVr  I'arke,  J.,  in  lunil  v.  /iunu, 
10  H.  &  C".  438. 

And  lastly,  there  are  cases  In  which,  even  while  the  special  contract  remains 
open,  one  party  has  been  pcnnltted  to  put  an  end  to  it,  and  to  sue  for  wliat 
has  been  already  done  uniler  it  upon  a  nwinlum  nvruit.  Withers  v.  Rfynnlds, 
2  B.  &  Ad.  882;  Phtwhe  v.  Colhitrn,  «  Bin::.  14;  [PnrhU  v.  Bnihjrr.  1  f.  B. 
N.  S.  2;)().] 

There  is  nodilllculty  in  tlndini;  cases  referal)le  to  each  of  the  above  classes, 
but  the  real  dilliculty  is  to  iletermine  when  a  case  occurs  In  practice,  to  which 
of  tliem  it  is  referable.  In  the  present  note  it  will  be  attempted  to  deduce 
froiu  the  decisions  a  few  rules,  likely  to  prove  useful  in  the  resolution  of 
such  a  dilliculty. 

The  question  it  is  proposed  to  discuss  is  as  follows:  —  In  ichat  cases  may 
an  action  he  brought  by  a  person  who  has  entered  into  a  special  contract  a/jainst 
the  person  icith  ichom  he  has  contracted,  irhile  the  plaintiff's  oirn  side  of  the  con- 
tract remains  unperfonned ?  Now  [since  tliere  is  a  distinction  in  the  nature 
of  the  actual  rischts  of  parties  to  contracts  which  was  well  defined  by  the 
now  ol)solctc  forms  of  action  of  special  and  indtbitatus  assumpstt,  it  is  still 
convenient  for  purposes  of  analysis  to  subdivide  the  above  question]  into 
two  liranches :  — 

1.  In  what  cases  [might]  the  action  [have  been]  brought  into  special 
assttmpsit  [or  in  other  words]  upon  the  contract  itself? 

2.  In  what  cases  might  it  have  been  brought  in  indebitatus  assumpsit? 


CUTTER    V.    POWELL.  1221 

[The  meaning  of  this  latter  question  will  l)e  considered  infra.']  The  former 
of  these  (iiiestions  it  ■\voukl  be  wrong  to  discuss  here  at  much  length,  be- 
cause it  has  been  treated  by  Serjeant  Williams  in  that  clear  and  satisfactory 
style  which  distinguishes  his  writings,  in  the  notes  to  Pordage  v.  Cole,  1 
Wms.  Saund.  548 ;  and  Peeters  y.  Ojne,  2  Wms.  Saund.  742.  The  result  of  the 
elaborate  discussion  contained  in  those  notes  is  as  follows  :  — 

There  are  some  special  contracts  in  which  the  promises  upon  the  one  side 
are  dependent  on  the  pi'omises  upon  the  other  side,  so  that  no  action  can  be 
maintained  for  non-performance  of  the  former,  without  showing  that  the 
plaintifi'  has  performed,  or  at  least  has  been  ready,  if  allowed,  to  perform, 
the  latter,  the  performance  of,  or  readiness  to  perform  which  is  said  to  be  a 
condition  precedent  to  his  right  of  action.  Of  this  description  was  the  case 
of  Morton  v.  Lamb,  7  T.  R.  125,  cited  2  Wms.  Saund.  552  b.  where  the 
declaration  averred,  that  in  consideration  that  the  plaintifi"  had  bought  of  the 
defendant  200  quarters  of  wheat  at  a  certain  price,  the  defendant  undertook 
to  deliver  it  at  a  certain  place  in  one  month  from  the  sale ;  and  that  the  plain- 
tiff was  always,  for  one  month  from  the  sale,  ready  and  willing  to  receive  the 
wheat,  but  that  the  defendant  did  not  deliver  it.  After  verdict,  the  judg- 
ment was  arrested,  on  the  ground  that  the  declaration  ought  to  have  averred 
that  the  plaintiff  was  ready  and  willing  to  pay  the  stipulated  price  upon 
delivery ;  and  the  court  said,  that  where  two  concurrent  acts  w'ere  to  be  done, 
the  party  who  sues  the  other  for  non-performance  must  aver  that  he  has  per- 
formed, or  was  ready  to  perfoinn  his  own  part  of  the  contract.  In  such 
cases  as  the  one  just  cited,  the  matters  to  be  done  upon  each  side  are  said  to 
be  concurrent  acts,  because  by  right  they  ought  to  be  done  at  the  same  time; 
and  a  readiness  to  perform  his  own  side  of  the  contract  is  a  condition  pre- 
cedent to  the  right  of  either  contractor  to  sue.  Thus  in  agreements  for  the 
sale  of  real  property,  where  one  party  agrees  to  convey,  and  the  other  to  pay 
the  price,  the  vendor  cannot  sue  for  the  money  without  showing  that  he  was 
ready  to  convey ;  nor  the  vendee  for  a  refusal  to  convey,  without  showing  a 
readiness  to  pay  the  money.  See  Glazebrook  v.  Woodroiv,  8  T.  R.  366;  and 
see  Head  v.  Baldrcn,  6  A.  &  E.  459 ;  Chanter  v.  Leese,  4  M.  &  W.  295.  [S.  C. 
in  error,  5  M.  &  W.  G98,  and  White  v.  Beeton,  7  H.  &  N.  42.] 

There  are  other  cases  in  which  one  contractor  must  show  a  readiness  to 
perform  his  part  before  he  can  sue,  but  the  other  need  not,  as  in  the  case 
cited  in  Morton  v.  Lamb,  where  a  party  was  to  pull  down  a  wall  and  then  to 
be  paid  for  it :  the  pulling  down  was  a  condition  precedent  to  the  right  to 
enforce  payment ;  but  a  readiness  to  pay  was  not  a  condition  precedent  to  the 
right  to  oblige  the  defendant  to  commence  the  work.  See  Coombes  v.  Green, 
11  M.  &  W.  480. 

Other  cases  there  are  in  which  neither  of  the  contractors  is  subjected  to 
any  condition  precedent  to  his  right  to  enforce  performance  by  the  other  of 
his  part ;  but  the  promises  on  each  side  are  independent  of  what  is  to  be  done 
upon  the  other.  Such  was  the  case  of  Campbell  v.  Jones,  6  T.  R.  570;  in 
which  A.  agreed,  in  consideration  of  a  sum  of  money,  to  teach  B.  a  particu- 
lar method  of  bleaching  for  which  he,  A.,  had  a  patent,  and  to  allow  B.  to 
exercise  that  method  during  the  continuance  of  the  patent  right.  It  was  held 
that  A.  might  sue  for  the  money,  though  he  had  not  instructed  B.,  who  might 
on  his  side,  if  he  pleased,  sue  for  the  neglect  to  instruct  him.  In  these  cases, 
t\\&  promises  on  the  one  side,  not  the  performance  of  those  promises,  are  the 
consideration  for  the  promises  upon  the  other  side.  In  the  former  cases  of 
concurrent  acts  and  conditions  precedent,  the  consideration  is  the  performance. 


\'2'2'2  t  I    I  1  I  l;     \  .    low  i.i.L. 

not  tlu'  promisf.  Hohnrt,  lOr,  St  »•  Franklin  v.  Miller,  4  A.  t  E.  599 ;  Corrall  v. 
('iilUll,\  M.  &  W.  7a4;  in/Avt  V.  .V»;u7/i.  10  M.  &  W.  Huj ;  [Fearun  v.  /ly/M/..,)/. 
14  g.  U.  1).  7U2;  54  L.  J.  y.  B.  33] ;  anil  Liater  v.  /VW'-y.  7  A.  &  E.  124.  where 
till-  point  arose  on  the  eonstniction  of  a  private  Act  of  I'nrlinnu-nt.  [Hut 
altiioiit;li,  wiiiU'  tlic  conlruet  wum  executory,  perfornuuice  nt  n  pnrtlcnlnr 
stipiiliitioM  niii;lit  iuive  l)een  n  condition  prece<lent  to  the  ri;;ht  «)f  the  party 
niaiviiii:  It  to  siie  upon  the  contract,  yet  if  the  other  party  ha.s  receivetl  n  m\U- 
Ntantial  portion  of  tlte  consideration.  It  is  no  longer  competent  for  tilin  tu  net 
up  tlie  Moii-perforniauce,  in  answer  to  tlie  action.  f'urUr  v.  Sninjill,  L.  It. 
10  i^.  H.  .'itil  (unlos,  indeed,  intlirectly  \ty  way  of  counterclulni  under  the 
.ludicature  Act.  widch  would  be  tantuinount  to  Klvln«  if  i"  ■  v  i>i.  ii<-e  in  reiluc- 
tlon  of  ilaniAKCs).] 

Tlie  ipiestlon  whether  the  acts  stipulated  for  In  a  i;l\iii  ii.nirail  are  con- 
current, <ir  whetlier  performance,  or  readiness  to  perform,  upon  either  siile. 
be  a  condition  precedent  to  the  riyht  to  enforce  performance  on  the  other,  is 
to  be  solved  not  liy  any  technical  rules,  iMit  l>y  ascertainint;,  if  possible,  the 
intention  of  the  parties.  1  T.  K.  •;4.">.  In  ordi-r  to  tliscover  that  intention, 
the  followlnir  rules  are  laid  down  by  .Serjeant  Williams.  1  Wnis.  Sauud.  .'i4h, 
in  notis. 

1.  "If  a  day  be  appointetl  for  payment  of  money,  or  part  of  It,  or  for 
(loln<;  any  other  act,  and  the  day  tj«  to  happen,  or  i(«iy  happen  before  the 
thinn  which  Is  the  consideration  of  the  money  <»r  other  act  Is  to  Ik*  per- 
formed, an  action  may  b«>  brought  for  the  money,  or  for  not  doini;  sm-h  other 
act  hfj'iirr  performance:  for  it  appi-ars  that  tlw  party  relied  upon  his  rfintily, 
and  tlld  not  Intend  to  nuike  the  performance  a  condition  precedent :  and  so  It  Is 
where  no  time  is  tlxed  for  the  perfonnance  of  that  which  is  the  considi-ra- 
tion  of  tlie  money  or  other  act."  See  Mntti>rk  v.  Kinijliikf,  10  \.  &.  H.  '>o,  and 
Wilks  V.  Smith,  10  M.  &  W .  MM),  where  the  aifreenient  was  to  sell  land  for  a 
sum  to  be  paid  at  the  expiration  of  four  years,  ami  Interest  in  the  meantime 
half-yearly.  It  was  held  that  the  declaration  for  an  instalment  of  the  interest 
need  not  contain  an  averment  of  readiness  to  convey.  Sec  also  Alrj-ntulrr  v. 
Gardnrr.  1  Bin-,'.  X.  C.  (;71  ;  I  fall  v.  Ihiinhridijf,  .-.  g.  B.  'iM\  Lord  Ilotrdpii  v. 
Simi>si>ii.  10  A.  &  E.  79:5;  I*istorv.  Catir,  \)  M.  &  W.  31  j;  Jiidnon  v.  limrdtn,  1 
Exch.  Wl;  Jinrett  v.  Sjtfun'r,  1  Exch.  <)47 ;  iJirkrr  v.  Jn'k.inn,  »i  C.  B.  lo.l; 
wliere  the  delivery  of  an  al)stract  of  title  by  the  vendor  to  the  vende*-  accord- 
ins;  to  the  terms  of  the  conditions  of  sale  was  held  not  to  be  a  condition  i»re- 
cedeiit  to  the  riijht  of  the  vendor  to  sue  for  the  purchase-money. 

[But  althouifh  "  the  day  for  the  payment  of  money,"  &c.,  "  may,"  according; 
to  the  letter  of  the  contract.  '•  liappen  before  the  thini;  which  is  the  consider- 
ation of  the  money  or  otlier  :ict  is  to  be  perfonued."  still,  if  it  can  be  sathercd 
from  the  wliolc  instrument  tliat  the  intention  of  the  parties  was  that  the  per- 
formance of  a  particular  act  sliould  l)e  a  conilition  i)recedent  to  the  rifiht  to 
be  paid  llie  money,  performance  must  be  averred  and  proved.  See  linherts  v. 
Brett,  liS  C.  B.  5G1;  6  C.  B.  X.  S.  (ill;  II  II.  L.  :{;57,  where  the  plaintilf  con- 
tracted to  procure  a  ship  and  to  do  certain  things  furthtrith,  the  defendant 
coiitractiu'i  to  pay  1000/.  witlnu  seven  days  after  the  arrival  of  the  shiji  at  M. 
wharf.  There  was  a  stipulation  tliat  bonds  for  securinj;  the  performance  of 
the  contract  should  be  iriven  by  each  party  within  ten  days  from  the  execu- 
tion of  the  indenture,  and  it  was  held  that  the  giving  the  bond  was  a  c(mdi- 
tion  precedent  to  tlie  pl.aintitl's  right  to  be  paid  the  1000/.,  for  although  the 
seven  days  from  tlie  ship's  arrival  at  M.  wharf  might  expire  before  the  ten 
days  witliiu  whicli  the  bond  was  to  be  executed,  it  was  clearly  the  intention 


CUTTER    V.    POWELL.  1223 

of  the  partief?  that  the  execution  of  the  bonds  shonld  be  a  securit.v  to  each 
side  for  the  due  performance  of  the  contract,  and  as  such  was  a  condition 
precedent  to  the  right  of  either  party  to  sue  upon  it.  "  Fortliwith"  was  con- 
strued to  mean  within  a  reasonable  time,  liaving  regard  to  all  that  was  to  be 
done  bj'  ])oth  parties.] 

2.  "  When  a  day  is  appointed  for  the  payment  of  money,  &c.,  and  the  day  is 
to  happen  after  the  thing  which  is  the  consideration  of  the  money,  &c.,  is  to 
be  performed,  no  action  can  be  maintained  for  the  money,  &c.,  before  per- 
formance." See  Glaholm  v.  Hays,  2  M.  &  G.  257 ;  2fatthews  v.  Taylor,  2  M.  & 
G.  G67;  LucMS  v.  Godwin,  3  Bing.  N.  C.  737;  Porcher  v.  Gardner,  8  C.  B. 
4G1 ;  Staunton  v.  Wood,  16  Q.  B.  638  ;  Grafton  v.  Eastern  Counties  Rail.  Co.,  8 
Exch.  699.  In  Neale  v.  Batcliff'e,  15  Q.  B.  916,  the  defendants,  who  were  ten- 
ants to  the  plaintifi'  of  a  house  and  other  premises,  agreed  to  keep  in  repair 
'■'■the  said  messuage,  buildings,  and  premises,  the  same  being  first  put  into  good 
tenantable  repair  and  condition  "  by  the  plaintiff.  The  action  was  brought  for 
the  non-repair,  and  the  declaration  alleged  that  the  plaintiff  had  before  breach 
put  the  premises  in  repair.  At  the  trial  the  jury  found  that  the  plaintiff"  had 
only  put  part  of  the  premises  in  repair,  but  that  part  had  not  been  left  in  repair 
by  the  defendants.  The  court  held  that  the  repairing  by  the  plaintiff  was  a 
condition  precedent  to  the  ol)ligation  to  repair  on  the  part  of  the  defendants, 
[(see  Coward  v.  Gregory,  L.  R.  2  C.  P.  153)],  and  that  on  this  contract  the 
condition  could  not  be  divided,  so  that  the  plaintiff,  not  having  repaired  the 
whole,  could  not  I'ecover  in  respect  of  the  non-repair  of  any  part;  as  to  the 
latter  point,  see  Kingdon  v.  Cox,  5  C.  B.  522  [and  Roll  v.  Cozens,  18  C.  B.  N.  S. 
673].  See  as  to  conditions  precedent  in  [leases  and  in]  farming  and  min- 
ing contracts,  Cannock  v.  Jones,  3  Exch.  233  (affirmed  in  Cam.  Scacc.  5  Exch. 
713,  and  in  Dom.  Proc.  3  H.  L.  C.  700)  ;  Friar  v.  Grey,  15  Q.  B.  891-901 ;  5 
Exch.  584-597  [4  H.  L.  C.  5G5 ;  and  Clarke  v.  Westrope,  18  C.  B.  765;  Dean 
and  Chapter  of  Bristol  v.  Jones,  1  E.  &  E.  484;  Tidey  v.  Mollett,  16  C.  B.  N.  S. 
298;  Bastin  v.  Bidwell,  18  Ch.  D.  238;  Williams  v.  Brisco,  22  Ch.  D.  441 ;  and 
Edge  v.  Boileau,  16  Q.  B.  D.  117 ;  55  L.  J.  Q.  B.  90]  ;  in  contracts  for  the  sale 
of  real  property.  Dicker  v.  Jackson,  6C.  B.  103 ;  Manby  v.  Cremonini,  6  Exch. 
808  [of  personalty,  Woolfe  v.  Home,  2  Q.  B.  D.  355;  Bowes  v.  Shand,  2  App. 
Cas.  455]  ;  in  charter-parties,  Ollive  v.  Booker,  1  Exch.  416;  Oliver  v.  Fielden, 

4  Exch.  135;  Rae  v.  Hackett,  12  M.  &  W.  724;  ^Thompson  v.  Gillespy,  5  E.  & 
B.  209;  Hudson  v.  Bilton,  6  E.  &  B.  565;  Tarrabochia  v.  Hickie,  1  H.  &  N. 
183;  Behn  v.  Burness,  1  B.  &  S.  877,  S.  C.  in  error  3  B.  &  S.  751;  Pnst  v. 
Dowie,  5  B.  &  S.  20,  33;  Andrew  v.  Chappie,  1  C.  P.  643;  Corkling  v.  Massey, 
L.  R.  8  C.  P.  395;  Jackson  v.  Union  Marine  Insurance  Co.,  L.  R.  10  C  P.  125; 
Tully  \.  Howling,  2  Q.  B.  D.  182;  Inman  Steamship  Co.  v.  Bischoff,  7  App. 
Cas.  670 ;  52  L.  J.  Q.  B.  169 ;  in  bills  of  lading,  Duthie  v.  Hilton,  L.  R.  4  C.  P. 
138;  in  building  contracts,  Morgan  v.  Birnie,  9  Bing.  672;  Lamprell  v.  Biller- 
icay  Union,  3  Exch.  283;  Roberts  v.  Bury  Improvement  Commissioners,  L.  R. 

5  C.  P.  310;  Jones  v.  St.  John's  College,  L.  R.  6  Q.  B.  115;  in  a  guarantee 
policy,  London  Guarantee  Co.  v.  Fearnley,  5  App.  Cas.  911.] 

3.  "  When  a  covenant  or  promise  goes  only  to  part  of  the  consideration, 
and  a  breach  thereof  may  be  paid  for  in  damages,  it  is  an  independent  cove- 
nant or  promise.  And  an  action  may  be  maintained  for  the  breach  of  it  by 
the  defendant  without  averring  performance,  or  readiness,  in  the  declara- 
tion." Such  was  the  case  of  Stavers  v.  Curling,  3  Bing.  N.  C.  355,  which  is  a 
very  strong  example,  for  in  that  case  the  defendant's  promises  were  ex- 
pressed in  the  contract  to  be  perforraable  "on  the  performance"  of  the 


1224  CUTTEK    V.    POWELL. 

plalntitTn,  and  wore  yot  hold  to  have  JM-on  lnt«'n<h'<l  to  \h\  and  to  be.  Inde- 
pendent. See  also  Fniiikliu  w.MiUrr,  4  \.  ii.  K.  .'•;•!•;  W'Ukit  v.  Smith,  10  M. 
&  W.  ;«u5;  tilnhnhn  v.  llnyn,  2  .M.  Jt  O.  2.J7 ;  and  Smtt  v.  Pttrkrr,  1  Q.  B.  WW. 
\vh(*re  it  U'a.s  decided  that,  in  the  ea.se  of  a  loan  .stipulated  to  he  repaiil.  with 
an  ii^ireeinenl  tluit  securities  deposited  should  l)e  returned  ujnin  repayment,  the 
return  of  tlie  securities  was  neither  a  concurrent  act  nor  a  condition  preee- 
<lent.  See  furtiier,  fiullniriii/  \.  .InrkHon,  .'J  M.  ^t  (J.  '.•<;();  t\ithtnituii>r»'  f'o.  v. 
Ilnhertson,  ->  M.  &  (i.  l.'U  ;  .\fftrkinlnsh  v.  Midhtiul  linihr.ty  r,,..  14  M  i  W. 
54«;  [('hristii'  v.  IloMhj,  7  C.  H.  N.  S.  5(1 1  ;  Seeger  v.  Oitlhif,  n  ('.  B.  N.  S. 
4'.;  AVirxon  v.  Smijthifit,  28  1..  .1.  Ex.  !>7 ;  AViV/  v.  M'hitieorth,  L.  U.  1  C.  P. 
f.«4;  AW/»n  v.  h'fij,  L.  K.  «  Cli.  r.lO;  Simpunn  v.  Crippin,  L.  K.  H  y.  B.  14,  43 
L.  J.  Q.  B.  28;  linpn'v.  Jnhn»nH,  L.  R.  H  C.  P.  Hw  ;  //»7riHi  v.  (hjf,  1  g.  B.  I). 
1H,S,  4.'»  L.  J.  g.  B.  200,  wliere  a  l>reaeh  hv  th«'  plaintitl*.  an  opera  singer,  of  a 
stipulation  to  he  in  London  for  reliearsal>  six  davs  hefore  the  comineiicenient 
of  Ids  eii<;ai;enn-nt,  was  held  no  bar  to  his  suin«  the  defendant  on  the  latter's 
H'fusal  to  euijaye  him;  Itut  ••onipare  I'lmsmtinl  v.  Spi'tn,  1  g.  H.  I).  41n.  4."i  L. 
.1.  g.  B.  r.2l.  where  the  plaintiirs  inability  to  appear  at  the  earlier  of  certain 
stipulated  performances  was  held  to  jjo  to  the  root  of  the  contract.  ] 

4.  "  When  the  mutual  prond.ses  or  covonant.s  jjo  to  the  whole  ronsideration 
on  both  sides,  they  are  mutual  comlitions,  and  |)erfonnance  must  be  averred." 
See  AtkiuHitn  v.  Smith.  14  M.  &  W.  •'.•.(.■i. 

5.  "  When  two  acts  are  to  be  done  nt  thf  s<tmf  timf,  as  when  .\.  <'ovenants 
to  convey  an  estate  to  B.  on  such  a  day  and  in  consiileration  thereof,  B. 
covenants  to  pay  \.  a  sum  of  money  on  the  Hume  dnij,  neillier  can  maintain  an 
action  without  averrini;  a  performance,  or  an  otTer  to  perform,  his  own  |>art, 
tlioniili  it  is  not  certain  which  of  them  is  oblijjed  to  do  the  llrst  act;  and  this 
particularly  applies  to  cases  ut  sale."  See  Stfphens  v.  I)e  Mediun,  4  (j.  B.  422, 
recofrniscd  by  the  Court  of  Common  IMeas  In  lioirlby  v.  lifll,  3  C.  B.  2H4  [and 
Mitrsdrn  v.  Moore,  4  H.  &  N.  aiX);  see  also  linnkftrt  v.  Howers,  L.  li.  1  C.  I*. 
484 ;  Pnijnter  v.  ./ames,  L.  K.  2  C.  P.  348].  To  this  it  may  be  added,  that  there 
is  a  Inrire  class  of  cases  in  which,  though  no  contiition  l)e  tr/irf.Hsiil,  the  lapse 
of  a  reasonalile  time  is  an  impli<'d  condition  i»recedent  to  tin-  rijjht  of  action, 
and  the  performance  of  such  condition  ounht  to  l)e  averred  as  well  as  where 
it  is  expressed.  Stamrt  v.  Kn.^tirooil,  11  M.  &  W.  I'.t7;  Sim.tnm  v.  Hhoilen, 
G  Biui:.  N.  C.  2f!l;  Crnnfjer  v.  l)nrr>\  12  y\.  &  \V.  4:!1.  and  per  .Mauie,  J., 
Startup  v.  MimloHaUl,  2  M.  &  G.  :J95. 

The  authorities  on  which  these  rules  depend  will  be  found  cited  and 
di-scussed  in  the  notes  by  Serjeant  Williams  above  referred  to,  1  Wms.  Saund. 
548;  and  2  Wms.  Saund.  742,  ed.  1871.  It  Is  proper  to  add,  that  when  it 
[was]  laid  down  that  pfrformance  of  n  concurrrnt  art  must  he  averred,  the 
meaninsj  of  that  [was],  that  the  plaintift'  must  [have  averred]  in  his  declara- 
tion that  he  was  ready  aud  irilli)i(/  to  perform  his  part  of  the  contract;  see 
JIannuic  v.  Goldner,  11  M.  &  W.  849,  and  Grauf/rr  v.  Uarre,  12  M.  &  W.  431, 
where  the  plaintitt',  havinj;  declared  on  an  ai,'reement  to  accejit  (foods  irithin  a 
rcasouahle  time  after  notice,  the  declaration  was  held  bad,  for  not  avcrrim? 
that  he  was  himself  during  such  7-easonabIe  time  ready  to  deliver  them.  See 
also  ./ockso7i  V.  AUaway,  6  M.  &  G.  942;  Boyd  v.  Lett,  1  C.  B.  222;  Giles  v. 
Giles,  9  Q.  B.  164;  Armitage  v.  Insole,  14  Q.  B.  728;  \_Duthie  v.  Uiltnn,  L.  R. 
4  C.  P.  138.]  And  the  averment  of  the  plaintift"s  readiness  and  willinjrness 
to  perform  his  part  of  tlic  contract  will  he  proved  by  showins;  that  he  called 
on  the  defendant  to  accomplish  his.  WUkx  v.  Atkinson,  1  Marsh.  412;  Levy 
V.  Lord  Herbert,  7  Taunt.  314;  1  B.  M.  5(5,  by  Dallas,  L.  C.  J.;  Pickford  v. 
Grand  Junction  Baihcay  Co..  8  M.  &  W.  372. 


CUTTER    Y.    POWELL.  1225 

It  [was]  not.  however,  necessary  in  any  case  to  aver  the  performance 
of  conditions  precedent  when  the  declaration  sliow[ed]  that  the  defendant 
ha[d]  absolntely  incapacitated  himself  from  performing  his  part  of  the 
contract,  Lovelock  v.  Franklyn,  8  Q.  B.  371 ;  Bradley  v.  Beujaiain,  4G  L.  J.  Q. 
B.  [590;]  and  see,  as  to  averring  the  dispensation,  or  waiver  of  conditions 
precedent,  Ripley  v.  M'Chire,  i  Exch.  345;  Doogood  v.  Bo.'ie,  9  C.  B.  131; 
[Cart  V.  Ambergate  Rail.  Co.,  17  Q.  B.  127;  Hochster  v.  De  La  Tour,  2  E.  &  B. 
678.] 

By  sect.  57  of  the  Common  Law  Procedure  Act,  1852  (15  &  16  Vict.  c.  76), 
the  averment  of  the  performance  of  conditions  precedent  might  be  made 
generally,  and  the  opposite  party  was  not  allowed  to  deny  such  averment 
generally,  but  was  bound  to  specify  in  his  pleading  the  condition  or  conditions 
precedent,  the  performance  of  which  he  intended  to  contest.  [See  Bentley  v. 
Dawes,  9  Exch.  666,  and  Wood  v.  The  Copper  Miners'  Co.,  17  C.  B.  561. 

Under  the  system  of  pleading  established  by  the  Judicature  Acts,  no 
averment  of  the  performance  of  conditions  precedent  is  necessary,  but  an 
averment  of  their  performance  is  to  be  implied  in  the  pleading  of  the  party 
for  whose  case  they  are  necessary :  and  the  opposite  party  is  to  specify 
directly  in  his  pleading  any  condition  precedent  the  performance  of  which  is 
intended  to  be  contested.     See  O.  19,  r.  14.] 

The  next  branch  of  the  question  proposed  at  the  beginning  of  this  note  is 
—  In  what  cases  would  an  action  of  indebitatus  assumpsit  [or  as  it  was  usually 
called,  after  the  omission  in  the  declaration  of  any  averment  of  a  promise, 
an  action  upon  the  common  counts']  have  lain,  while  the  special  contract 
remained  open  ?  This  is  a  question  of  great  practical  importance.  And  as 
the  distinctions  it  involves  are  more  than  usually  line,  and  the  authorities 
numerous,  an  attempt  will  be  made  to  classify  them,  and  deduce  from  them 
one  or  two  general  rules. 

[The  meaning  of  this  question  really  is,  "  When  may  it  be  said  that  although 
the  plaintiff  has  not  performed  his  part  of  the  contract,  there  is  nevertheless, 
in  contemplation  of  law,  a  debt  due  from  the  defendant  to  the  plaintift',  in 
respect  of  what  the  plaintitf  has  done  under  the  contract  ?  "  When  this  debt 
arose  out  of  a  new  contract  inferred  from  the  conduct  of  the  parties,  as,  for 
instance,  where  the  benefit  of  something  done  under,  but  not  in  accordance 
with  the  contract  had  been  accepted,  it  became  properly  recoverable  under 
what  were  called  the  common  courts,  and  therefore,  though  the  late  com- 
pendious system  of  pleading  has  been  abolished,  the  question  to  be  deter- 
mined in  each  case  is  still  the  same,  and  must  be  tested  by  the  same  rules. 

On  the  other  hand,  when  the  party  suing  has  not  departed  from  the  terms 
of  the  special  contract  at  all,  but  has  been  ready  and  willing  to  do  all  that 
it  was  the  intention  of  the  parties  he  should  do,  his  action  is  properly  said  to 
be  brought  upon  the  special  contract  itself.  In  ascertaining  what  was  the 
intention  of  the  parties,  which  must  be  gathered  from  the  instrument  itself, 
nice  questions  must  necessarily  arise  as  to  what  are  or  are  not  conditions 
precedent  to  the  right  of  either  partj'^  to  sue,  but  these  questions  do  not 
depend  on  mere  subtleties  of  pleading,  they  are  questions  of  fact  which  must 
be  answered  at  some  stage  in  the  investigation  before  a  decision  as  to  whether 
a  right  of  action  exists  can  be  arrived  at. 

It  is  submitted,  therefore,  that  the  pleading  test  which  has  been  adopted  as 
the  basis  of  the  present  note,  resting  as  it  does  upon  a  logical  analysis  of  the 
cause  of  action  in  each  case,  is  not  only  the  simplest  and  most  exact  that  can 
be  applied,  but  must  still,  under  a  looser  system  of  pleading,  be  as  practically 


lliljti  ClTTKi:     V.    roWKI.L. 

useful  as  it  has  bf«>n  luTftnforc.  It  Is  none  tlio  loss  itupnrtnnt  to  nncortaln 
oxaclly  what  a  plaintitrs  ri;ilits  an-.  altln>iii;li  tliost-  rii;lits  may  no  lonjctT  ba 
lost  tlirou};h  inexactiu-ss  nf  stalniuut  i»ii  tin-  jiarl  of  tin-  pW-adf  r  at  tlio  uutMct 
of  tlie  cast;.] 

Ill  the  (Irst  place,  then,  there  is  a  iiuuu-rous  class  of  cases  wlikch  establish 
the  ;;eneral  |)ri>positi(>ii,  that  uiiiie  a  special  contract  reiiuiined  open,  i.f., 
uiiperl'oniieii,  tlie  party  whose  part  of  It  was  unperforuied  e4)uhl  not  sue  In 
indihUittnx  intHtunimit  to  recover  a  compensation  for  wliat  lie  had  done,  until 
the  whole  was  completed.  This  principle  is  alllrmed  and  aeteil  on  in  t'iitt»r 
V.  I'lnnll ;  it  was  also  the  j^rouml  of  the  decision  in  lliillf  v.  Ilti'ihtnuin, 
2  East,  145;  a  decision  of  consi»leral)le  celebrity,  and  which  is  said  In  the 
jmlj;ment  to  have  proceeded  on  the  authority  of  MV.s/«<h  v.  liiorins.  Doiiijl. 
2;(;  but  H't'stnn  v.  iJntrneg  belon;;s  to  a  somewhat  dltVercnt  class  of  cases: 
the  action  was  there  brouKht  to  recover  back  the  price  of  a  horse  In  couse- 
<|Uenc«!  of  a  breach  of  warranty;  so  that  It  was  not  an  attempt  to  obtain 
compensation  for  work  don«',  or  jjo'xl'*  «lelivere«l,  tinder  a  special  contract; 
but  to  recover  money  i)aid  on  a  consideration  whi<h  was  alleged  to  have 
failed,  and  this  the  plaintill'.  havlnu  ac<-eptcd  the  horse,  was  not  allowed  to 
do.  \\'i.slon  V.  Diiirnfn  therefore  belon;;s  to  the  same  class  with  Strrt-t  v. 
lilnij,  2  IJ.  &  A«l.  4.'»(!,  which  is  now  the  leadin;;  case  on  that  subject,  and 
diU'ers  from  Ilulh-  v.  IIi  iijhtinKn.  where  the  action  was  not  for  money  ha»l 
and  received  to  recover  back  cash  paid  on  a  considenition  which  had  faileil, 
but  for  work  anil  labour  done  under  a  special  contract  which  hail  l>e(>n  <uily 
in  part  i)erfonned.  In  that  case  the  plaintitl',  who  was  a  seaman,  sued  for 
waiit's.  lie  proved  a  service  on  board  tin-  defendant's  «,hip,  from  .Mtona 
to  l,r>ndon.  lie  further  proved  that,  on  arrivini;  at  Ltuulon.  the  tlefendant 
refused  to  jjive  the  seamen  victuals,  and  t)ade  them  '^o  on  shore,  saylni; 
he  could  i^et  plenty  of  tiieir  co\intrymen  to  i;o  back  for  their  victuals  only. 
The  phiiutitr accordingly  did  i^o  on  shore,  —  that  afti-r  some  days  tin-  defend- 
ant re(|uired  him  to  return  on  board,  which  he  refused  to  do,  sayini;  he  had 
tlie  law  of  him.  lie  then  commenced  his  action.  The  defendant  put  in  the 
articles  of  ajxreenient  under  which  the  plaintiff  served,  which  showed  that  he 
was  hired  from  Altona  to  London  and  back  a;;ain,  and  containctl  a  special 
clause  by  which  the  plaintitf  bound  himself  to  demand  no  waijes  till  tlie 
conclusion  of  the  voyai;e.  I'pon  these  facts,  Le  lUanc,  J.,  nonsuited  the 
plaintitl",  on  thf  ffrmiiKl  thut  thr  spirinl  mntrnrt  rpmnimil  open  nud  utinsriuilfd, 
and  that  the  plaintill'  should  have  sued  on  it,  and  not  in  iiuhhitntns  ansumpitit ; 
and  the  Court  of  Kiiiii's  Mencli  afterwards  ajiproveil  of  that  ruling. 

The  principle  on  which  Ilullf  v.  JIiii/htin<tn  was  decided  has  never  since 
been  (luestioued.  Assimiiu!^  the  special  contract  to  have  remained  open  and 
unresciiuled,  the  plaintiff  was  undoubtedly  bound  to  sue  on  it,  and  not  in 
imh'hitntus  asstayipsit.  But  whether  the  court  was  rio^ht  in  assuming?  that  the 
special  contract  did,  after  what  had  taken  place,  remain  open  and  unre- 
sciiuled, is  a  very  different  ciuestion,  and  upon  that  question  it  is  submitted 
that  the  argument  of  Mr.  Gibbs  was  correct,  when  lie  contended  that  the 
special  contract  has  been  put  an  end  to.  and  that  the  plaintiff  had  a  riirht  to 
treat  it  as  having  never  existed,  and  to  sue  for  his  labour  on  a  qHiuitnm 
meruit.  And  it  is  further  submitted  that  it  is  an  invariably  true  i)ropositiou, 
that,  wherever  oue  of  the  parties  to  a  special  contract  not  under  seal  has,  in 
an  unqualified  manner,  refused  to  perform  his  side  of  the  contract,  or  has 
disabled  himself  from  perfonuing  it  bj'  his  own  act,  the  other  party  has, 
thereupon,  a  right  to  elect  to  rescind  it,  and  may,  on  doing  so,  immediately 


CUTTER    V.    POWELL.  1227 

sne  on  a  quantum  meruit  for  anything  -which  he  had  clone  under  it  previously 
to  the  rescission :  this  it  is  apprehended  is  established  by  Withers  v.  Re7j- 
nolds,  2  B.  &  Ad.  882;  Planche  v.  Colburn,  8  Biug.  14;  Franklin  v.  Miller,  4 
A.  &  E.  599;  [Frickett  v.  Badger,  1  C.  B.  N.  S.  29G ;  Inchbald  v.  The  Western 
Neilrjherry  Coffee  Co.,  17  C.  B.  N.  S.  733],  and  other  cases  which  will  be  pres- 
ently cited  and  commented  upon.  Now  in  Hulle  v.  Heicjhtman,  the  defendant 
had  refused  to  perform  his  part  of  the  contract,  and  the  plaintift'  had,  by 
bringing  his  action  on  a  quantum  meruit,  elected  to  rescind.  It  is  submitted, 
therefore,  that  the  case  of  Hulle  v.  Heifjhtman,  so  far  as  it  assumes  that  the 
special  contract  remained  open,  would  not  now  be  supported,  unless,  indeed, 
it  can  be  so  upon  the  following  consideration;  viz.  it  may  be  urged,  that  the 
question  whether  the  acts  of  the  defendant,  Heightman,  amounted  to  an 
absolute  unqualified  refusal  to  perform  his  part  of  the  contract,  was  a  ques- 
tion which  ought  to  have  been  left  to  the  jurj',  and  that  as  the  plaintifl's 
counsel  did  not  reqiiire  that  it  should  be  submitted  to  them,  he  must  be  taken 
to  have  acquiesced  in  the  opinion  of  Mr.  J.  Le  Blanc,  that  the  circumstances 
did  not  amount  to  a  rescission. 

On  the  same  principle  with  Hulle  v.  Heightman  proceeded  Ellis  v.  Hamlin, 
3  Taunt.  52;  R.  v.  ]Vhittlehur>j,  6  T.  K.  464;  Spain  v.  Arnot,  2  Stark.  256; 
Turner  v.  Robinson,  6  C.  &  P.  15;  Ridgioay  v.  Hungerford  Market  Co.,  3  A.  «& 
E.  171  (which  latter  were  cases  of  servants  discharged  for  cause,  before  the 
expiration  of  their  year);  Jesse  v.  Roy,  1  C.  M.  &  R.  316;  and  Sinclair  v. 
Bowles,  9  B.  &  C.  92,  which  is,  perhaps,  more  often  cited  than  any  other  case 
upon  this  subject.  It  was  an  action  of  assumpsit  for  work  and  labour  and 
materials,  and  for  goods  sold.  At  the  trial  it  appeared  that  the  plaintifl'  had 
repaired  three  chandeliers  for  the  defendant,  and  that  bl.  was  a  reasonable 
price  for  the  work  and  materials ;  but  it  was  also  proved  by  the  defendant 
that  the  plaintifl',  when  he  accepted  the  job,  expressly  agreed  to  make  them 
comjih'te  for  the  10?.,  which  he  had  failed  in  doing.  The  learned  judge, 
Parke,  J.,  nonsuited  the  plaintifl',  giving  him  leave  to  move  to  enter  a  verdict 
for  51. ;  but  the  court  refused  the  rule,  on  the  ground  that  the  contract  was 
entire,  and  that  the  plaintifl"  not  having  completed  his  part,  had  no  right  to 
recover  anything. 

The  eflect  of  this  case  was  discussed  in  the  later  one  of  Roberts  v.  Hare- 
lock,  3  B.  &  Ad.  404.  That  was  an  action  for  work  and  materials;  tlie  plain- 
tifl", a  shipwright,  had  engaged  to  put  a  ship  of  the  defendant  into  thorough 
repair.  Before  this  had  been  completed,  the  plaintifl"  demanded  payment  for 
what  he  had  alread}'  done,  and  refused  to  finish  the  job  without.  The  defend- 
ant refused  payment,  and  thereupon  this  action  was  brought;  and  a  verdict 
having  been  found  for  the  plaintifl",  the  defendant  moved  to  set  it  aside,  on 
the  ground  that  the  special  contract  was  still  open.  The  court  refused  a 
motion  made,  in  pursuance  of  leave,  to  enter  a  nonsuit.  "  I  have  no  doubt," 
said  Lord  Tenterclen,  "  that  the  plaintifl' was  entitled  to  recover.  In  Sinclair 
V.  Bowles,  the  contract  was  to  do  a  speciflc  work  for  a  specific  suin.  There  is 
nothing  in  this  case  amounting  to  a  contract  to  do  the  whole  repairs  and 
make  no  demand  till  they  are  completed." 

From  these  Avords  it  may  l)e  thought  that  his  lordship's  judgment  pro- 
ceeded on  the  ground  that  the  performance  of  the  whole  toork  is  not  to  be 
considered  a  condition  precedent  to  the  payment  of  any  part  of  the  price, 
excepting  when  the  sum  to  be  paid  and  the  work  to  be  done  are  both  speci- 
fied, (unless,  of  course,  in  case  of  special  terms  in  the  agreement  expressly 
imposing  such  condition)  ;    and  certainly  good  reasons  may  be  alleged  iu 


\-2-J.H  ri'TTKi:     \.    I'oWKLl.. 

favour  of  snth  R  (loctrim-,  f<>r  \\li<n  the  prlcr  to  do  pal<l  Ih  a  sporltlwl  Knm, 
as  iit  Sinrlnir  v.  Jim'-li's,  it  is  cliar  tiiat  tin-  court  and  jury  fan  havt-  no  ri«la 
t<j  apportion  tliat  wiiitii  tlic  partirs  liionisrlvt's  have  tn-at*'*!  a.s  iMitln*,  ami  to 
Hay  lliat  it  sluill  Im-  paitl  In  inHtalnu-nts,  ctmtrary  to  tin-  aiin-fnu-nt,  Instt-a*!  of 
In  a  rr)unU  sum  as  provldt-il  by  ttie  ayrocnu-nt ;  but,  wlu-n-  no  prlrr  Is  sptTJ- 
tied,  this  dillicidty  docs  not  arise,  anil  perhaps  the  true  and  riyht  presumption 
is,  that  the  parties  Intemled  the  payment  to  keep  pace  with  the  aeenial  c»f  the 
benellt  for  \vld«'h  payment  Is  to  be  made. 

Hut  this,  of  course,  can  only  lie  where  the  consideration  is  itself  of  an 
apportionable  nature,  for  It  Is  easy  to  put  a  case  in  which,  though  no  price 
has  l»c<'n  specUled.  yet  the  c<»nslderation  is  of  so  indivisil>lc  a  nature,  that  It 
would  be  absurd  to  say  tiwit  «>ne  part  sh«»ultl  be  paid  for  lieforc  the  rcnudnder; 
as  wliere  a  painter  agrees  to  draw  A.'s  likeness,  it  would  be  absurd  to  rei|uirc 
A.  to  pay  a  rat«'able  sum  on  account  when  half  the  face  only  had  In-en  lln- 
Ished  :  it  Is  obvious  that  he  has  then  received  no  benellt,  and  never  will 
receive  any  unless  the  likeness  should  be  |H>rfe<-l»'tl.  There  are,  liowever, 
eases  (that,  for  instance  of  /inlnrl.i  v.  Ifunlnrk)  In  which  tlie  consideration 
is  In  its  nature  apportionable,  and  there.  If  no  entire  sum  have  been  a«ree«l 
on  as  the  price  of  the  entire  benellt.  It  would  not  be  unjust  to  presume  that 
the  intention  of  the  contractors  was  that  the  remuneration  should  keep  pai-e 
with  the  conslderatl'iii,  and  be  recoverable  totii-a  nuntifii  by  action  on  a  -/(/.(/i- 
Itiin  iniruit. 

This  position  (besides  what  Is  said  by  l,onl  Tenterden)  is  perhaps  sume- 
what  countenanced  by  Witturs  v.  /lii/nnlih.  '2  It.  &  .Vd.  HA'2.  That  was  aii- 
sumpsil  for  not  dellverlnu  straw  according  to  the  following  ay^rcemcnt : 
".John  Reynolds  undertakes  to  supply  .loseph  Withers  with  wheat  straw 
delivered  at  his  prendses  till  the  24th  June,  IKti),  at  the  sum  of  XU.  per  load 
of  (liirty-six  tnisses,  to  be  delivered  at  the  rat«'  of  three  liiads  in  a  forlni^ht ; 
and  the  said  J.  W.  a;;rees  to  |)ay  J.  U.  'Ms.  per  load  for  each  loa«l  so  delivered 
from  this  day  to  the  'Jlfh  .luiie.  ls:?().  according  to  the  terms  of  this  a;;ree- 
mcnt."  It  appeared  that  the  plaiiitilV  had  refused  to  pay  for  the  straw  iipnii 
tlelirenj,  and  it  was  contended  that  he  was  not  bound  to  do  .so.  ami  that  as  no 
time  was  named  for  the  payment,  he  ml;;ht  <lefer  It  till  the  expiration  of  the 
contract,  or  that,  at  all  events,  the  promises  to  deliver  the  straw  and  to  pay 
for  it  were  independent,  and  should  be  enforced  by  cross  actions.  Ilut  the 
court  hold  that  he  had  a  riiiht  to  be  paid  totiix  qunth's  on  the  delivery  of  each 
load,  and  that  tlie  plaintitr's  refusal  to  do  so  irave  him  a  ri^'ht  to  rescind  the 
contract,  and  that  the  plaintiff  was  therefore  properly  nonsuiteil.  Such  are 
the  arfiuments  in  favour  of  the  doctrine  at  which  Lord  Tenterden  seems  to 
have  hinted  in  Rohertx  v.  llivplork.  At  the  same  time,  it  must  not  be  con- 
cealed that  the  expressions  of  I'arke,  J.,  in  that  very  case,  lean  the  other  way. 
"  If,"  says  his  lordship,  "  there  had  been  any  spccitlc  contract  by  the  plain- 
tiff/or completing  tiie  work,  the  argriiment  of  the  defendant  might  have  had 
much  weight.  •  But  this  was  only  a  general  employment  of  the  plaintiff  by  the 
defendant,  in  the  same  way  as  all  shipwrights  are  employed."  Yet  surely  if 
the  plaintiff  had  refused  to  romplctc  on  payment  as  he  wont  along,  an  action 
would  have  lain  against  him.  In  Withers  v.  I\ei/)whh,  Taunton.  .1.,  expressly 
founds  the  decision  upon  the  special  wording  of  the  contract.  '■  for  tiirh 
load,"  &c..  which  he  says  imports  that  each  load  shall  be  paid  for  on  deliv- 
ery; and,  indeed,  if  that  case  were  decided  on  any  other  ground,  it  would  be 
contrary  to  the  opinion  expressed  by  Parke,  J.,  in  OxeinVtle  v.  Wetherall, 
9  B.  &  C.  386;  [and  see  Button  v.  Thompson,  L.  R.  4  C.  P.  330.] 


CUTTER    V.    POWELL.  1:^29 

To  return  from  this  dig:ression.  In  Read  v.  Rann,  10  B.  &  C.  438,  recog- 
nised in  Broad  v.  Thomas,  7  Bing.  99,  the  doctrine  of  Cutter  v.  Powell,  Hiille 
V.  Heightman,  and  Sinclair  v.  Bowles,  was  again  acted  upon.  In  tliat  case  a 
ship-broker  brought  an  action  for  commission  for  procuring  a  charterer  for 
tlie  defendant's  ship.  It  was  proved  to  be  a  custom  in  tlie  Cit}-  tlaat,  in  sucli 
cases,  if  tlie  ])argain  was  perfected,  the  commission  was  live  per  cent.,  I^ut  if 
tlie  bargain  went  ofl",  notliing  was  paya])le ;  and  liere  it  liad  gone  ofl'.  The 
plaintifl'was  nonsuited.  '•  The  claim  of  the  plaintiff,"  said  Parke,  J.,  '•  rests 
on  tlie  custom,  and  not  on  a  quantum  meruit.  The  custom  presupposes  a 
special  contract,  and,  if  tliat  is  not  satisfied,  no  claim  at  all  arises,  for  no 
other  contract  can  be  implied.  In  some  cases,  a  special  contract  not  executed 
may  give  rise  to  a  claim  in  the  natui-e  of  a  qnantum  meruit,  ex.  gr.  where  a 
special  contract  has  been  made  for  goods  sent  not  according  to  the  contract 
have  been  retained  by  the  party,  there  a  claim  for  the  value  on  a  quantum 
valebant  may  be  supported.  But  then  from  the  circumstances  a  new  contract 
may  be  implied." 

[But  no  claim  in  the  nature  of  a  quantum  meruit  can  be  founded  upon  a 
special  contract  which  has  not  been  performed  unless  the  person  who  has 
a  right  to  insist  on  tlie  pei'formance  of  the  special  contract  has  accepted 
some  benefit  resulting  from  its  partial  performance,  or  the  circumstances  are 
such  as  to  show,  in  some  other  way,  that  a  new  contract  has  arisen  between 
the  parties.  For  instance,  if  A.  agree  with  B.  to  pay  him  a  sum  of  monej^ 
if  he  will  sell  for  him  an  advowson,  and  the  original  bargain  be  that  the 
monej'  is  to  be  paid  on  the  sale,  and  there  is  nothing  in  the  contract  from 
which  it  can  be  implied  that  B.  is  to  be  paid  for  abortive  attempts  to  sell,  and 
nothing  has  occuiTed  to  show  that  a  new  contract  has  arisen,  B.  cannot,  if 
the  sale  does  not  take  place,  claim  remuneration  under  a  quantum  meruit  for 
the  work  actually  done  in  the  atteinpt  to  sell ;  although  if  the  sale  have  been 
prevented  by  a  revocation  of  B.'s  authority,  and  that  revocation  be  wrongful, 
an  action  will  lie  against  A.  for  his  wrongful  act.  See  Simpson  v.  Lamh,  17 
C.  B.  603.  And  if  the  bargain  goes  off  thi'ough  the  default  of  the  principal, 
the  agent  who  has  performed  his  part  of  the  contract  is  entitled  to  his  whole 
commission.  Green  v.  Lucas,  33  L.  T.  584.  As  to  when  an  agent's  authority 
may  be  revoked,  and  the  consequences  which  result  from  the  revocation, 
Smart  v.  Sandars,  3  C.  B.  380,  5  C.  B.  895;  Taplin  v.  Florence,  10  C.  B.  744; 
and  the  judgments  in  Campanari  v.  Woodburn,  15  C.  B.  400. 

Nor,  as  is  obvious,  will  any  action  lie  on  a  quantum  meruit  where  services 
have  been  rendered  in  anticipation  of  a  special  contract,  which  is,  after  all, 
not  entered  into,  there  being  no  intention  that  such  services  shall  be  paid  for. 
Harrison  \.  James,  7  H.  &  N.  894,  was  a  case  of  this  class:  a  verbal  agree- 
ment had  been  made  that  the  defendant's  son  should  go  on  trial  to  the  plain- 
tifi''s  house,  and  if  the  parties  were  satisfied  sliould  be  afterwards  apprenticed 
to  the  plaintiff.  The  son  remained  some  time  with  the  plaintiff  on  trial,  and 
was  boarded  and  lodged  l)y  him,  but  the  intended  apprenticeship  went  ofl', 
and  the  sou  left  the  plaintiff's  house.  Upon  these  facts  it  was  held  that  the 
plaintiff  could  not  recover  for  the  board  and  lodging  during  the  period  when 
the  son  had  been  in  his  house;  for  it  was  clear,  under  the  circumstances,  that 
the  pai'ties  never  meant  that  the  board,  &c.,  was  to  be  paid  for.] 

The  general  rule  being  thus  established,  viz.  that  while  the  special  contract 
remained  unperformed,  no  action  of  indebitattis  assumpsit  could  be  brought 
for  anything  done  under  it,  we  now  come  to  the  exceptions  from  that  rule ; 
and  the  first  of  them  is  that  advei'ted  to  by  Mr.  J.  Parke,  in  the  passage  just 


fitfd.  It  oonslHts  of  casp**  in  wliirh  soiiutliln:;  has  hoi'n  «l<»np  umler  n  -jp^'rlal 
contract,  but  not  in  strict  accordance  wltii  tlic  tcnnn  of  tliat  contnut.  In 
sucli  a  case  tlic  party  cannot  recover  tlie  renuineration  stipulateil  for  In  the 
contract,  liecanse  lie  has  not  done  that  which  was  to  he  the  considerution  for 
It.  Still,  if  tlic  otiier  party  have  derived  any  benelit  from  his  inl>onr.  It  woiiUI 
be  nnjnst  to  allow  hini  to  retain  that  wlthont  payint;  anythlni;.  Tlie  law, 
tlierefore,  implies  a  prondse  on  his  part  to  pay  snch  a  renuineration  a.H  the 
hencllt  conferred  upon  him  is  reasonably  worth,  and  to  recover  that  qunntHin 
of  remuneration,  an  action  of  imlt-hitntus  iiK.sitinimit  wa.s  maintalmible.  This 
is  conceiveil  to  l)e  a  just  expression  of  the  rule  of  law,  [whii-h  still]  prevails. 
The  cases  on  the  subject  are,  however,  extrenu'iy  numerous,  und  In  many 
instances  at  variance  with  each  other;  and,  as  tin-  subject  is  one  of  irreat 
jjeiieral  Importance,  it  will  perhaps  l)e  best^autl  fairest  t<i  the  reailer  to  enter 
somewhat  ni()re  at  larye  upon  It,  even  at  the  rislv  of  prolixity. 

The  rule  which  was  in  early  times  ol)served  upon  this  subject,  was  diamet- 
rically opposite  to  that  which  now  obtains.  It  was  held  that,  whenevt-r  any- 
thlnir  was  done  under  a  special  contract,  but  not  in  confonidty  thereto,  the 
party  for  whom  It  is  done  nnist  pay  the  stipulated  price,  and  resort  to  a 
cross  action  to  indemnify  himself  for  the  deficiency  In  the  consldenition. 
Thus  It  was  heltl.  in  Ihoirnf  v.  Duviit,  17'.»4,  cited  7  Ka.Mt,  47l»,  «»i  imii),  thot 
the  plaint  111',  who  had  ai^reeil  to  btdld  a  race-booth  for  twenty  ^tdneus.  wan 
entitled  to  recover  the  whole  price,  althoui;h  the  booth  was  so  badly  con- 
structed that  It  fell  (h>wn  durlni;  the  races,  and  it  wa.s  adndtted  that  a 
cross  action  would  lie  a;;ainst  the  plaintiff.  In  T'lni'lnr  v.  M'Lnrhlun,  Feb. 
(J,  IiHim;,  '2  N.  It.  l.ti"',  an  ai'tlon  was  bronnht  on  an  attorney's  bill,  and  the 
defence  was  ;;ross  nei;ll;;ence  in  the  plalntlll*.  who  had  allowi-d  impropi-r  bail 
to  justify.  'Ihe  evidence  of  nei;liyeiice  was  held  Inadndssible,  and  the  plain- 
till"  recovered  the  whole  amount  of  his  bill;  the  court  saylni;  that  the  only 
case  in  which  su<li  evidence  WDuld  be  admissible  was  where  the  nei;lli;enc«' 
was  so  !;reat  that  the  plalntltl'  had  derived  «<»  hi'mjit  nt  nil,  and  that  there 
they  would  perhaps  admit  It,  to  prevent  circuity.  In  Milh  v.  lliiiuhrithjr, 
cited  2  N.  K.  I'Mh  injury  from  im|iroper  stowage  was  held  to  be  no  defence 
in  an  action  for  freij^ht. 

However,  in  Trinity  Term,  \>'>  (i.  :'•  .lune  l:!,  isoC),  the  rule  which  now 
obtains  was  established  by  the  decision  of  the  K.  H.  in  lluMtn  v.  fSnttir.  7 
East,  471).  That  was  an  action  of  ansnmpsit  for  woric  and  labour,  and  mate- 
rials, brouirht  by  a  carpenter,  whom  the  defendant,  a  farmer,  had  employed 
to  roof  a  linliay  and  a  barn.  The  defendant,  at  AV.-*/  J'rins,  offered  to  prove 
that  the  worlv  had  been  done  in  a  grossly  improper  ntanner.  This  evidence 
was  rejected  on  the  autliority  of  Broirne  v.  Dun's,  and  a  venlict  found  for  the 
plaintitV,  which  the  court  set  aside  on  the  ground  that  the  defence  ought  to 
have  been  adnuttcd. 

This  decision  was  followed  by  FKi-nsirnrtU  v.  Gnrranl.  1  Camp.  .iS.  wliicli 
was  also  an  action  of  ansiinipsit  for  work  and  labour,  and  materials,  brouirlit 
by  tlie  plaintitt",  who  had  rebuilt  the  front  of  a  lionse  for  the  defendant.  The 
defence  was  that  the  house  was  so  out  of  tlie  perpenilicular  that  it  was  in 
daiiixer  of  falling.  Parke,  for  the  plaintifl",  ol)jected,  tliat  this  was  only 
ground  for  a  cross  action;  and  he  relied  on  Templar  v.  M'Larhlan.  Lord 
Elknborongh  admitted  the  evidence.  '*  Tills  action,"  said  his  lordship,  "  Is 
founded  on  a  claim  for  meritorious  service :  the  plaintifl'  is  to  recover  ichat 
he  deserves.  It  is,  tlierefore,  to  be  considered  how  much  he  deserves,  or  if 
he  deserves  anything.  If  the  defendant  has  derived  no  benefit  from  his  ser- 
vices, he  deserves  nothing,  and  there  must  l)e  a  verdict  against  him.     There 


CUTTER    V.    POWELL.  1231 

was  forraerl}'  considerable  doubt  \ipon  this  point.  The  late  i\Ir.  J.  BuUer 
thought —  and  I,  in  deference  to  so  great  an  authority,  have,  at  times,  ruled 
tlie  same  way  —  that,  in  cases  of  this  Ivind,  a  cross  action  for  the  negligence 
was  necessary;  but  that,  if  the  work  be  done,  the  plaintifl'  must  recover  for 
It.  I  have  since  had  a  conference  icith  the  judges  on  the  subject,  and  I  now  con- 
sider this  as  a  correct  rule :  that  if  there  has  been  no  beneficial  service,  there 
shall  be  no  pay ;  but  if  some  benefit  has  been  derived,  thoiigJi  not  to  the  extent 
expected,  this  shall  go  to  the  amount  of  the  plaintifTs  demand.  The  claim  shall 
be  co-extensive  with  the  benefit." 

This  case  was  followed  by  Denew  v.  Daverell,  3  Camp.  451,  Avhere  the  same 
rule  was  applied  in  an  action  by  an  auctioneer  against  his  employer.  See  too 
Brncctj  v.  Carter,  12  A.  &  E.  373;  Nicholls  v..  Wilson,  11  M.  &  W.  107;  Hill  v. 
Featherstonhaugh,  7  Bing.  569;  Shaw  v.  Arden,  9  Bing.  287;  Gill  v.  Loxigher, 
1  Tyrwh.  121 ;  Huntley  v.  Bulwer,  6  Bing.  N.  C.  Ill  :  [Cox  v.  Leech,  1  C.  B.  N. 
S.  G17;  and  Long  v.  Orsi,  18  C.  B.  610,  where  this  rule  was  applied  in  actions 
brought  hv  attorneys  to  recover  against  their  clients  the  costs  of  abortive 
proceedings  at  law.]  And  Poulton  v.  Lattimore,  9  B.  &  C.  259,  and  Street  v, 
Blay,  2  B.  &  Ad.  456,  established,  beyond  all  doubt,  that,  even  where  there 
was  an  express  warranty,  and  a  breach  of  that  warranty  was  the  defect  of 
consideration  complained  of,  the  defendant  might,  in  an  action  for  goods 
sold  and  delivered,  give  evidence  of  the  breach  of  warranty  in  reduction  of 
damages.  ( Vide  Dicken  v.  Neale,  1  M.  &  W.  556.)  And  this  might  have 
been  done  under  the  general  issue,  Hill  v.  Allen,  2  M.  &  W.  283.  [As  to  the 
further  extension  of  this  principle  by  the  Judicature  Act  1873,  see  infra.'\ 

In  Francis  v.  Baker,  10  A.  &  E.  642,  it  was  attempted  to  stretch  this  prin- 
ciple so  far  as  to  include  a  case  in  which  a  broker,  who  had  purchased  rail- 
way shares  for  the  defendant,  sued  for  money  paid,  and  the  latter  set  up  as 
his  defence  conversion  of  the  shares  by  the  broker :  the  court,  however,  held 
that  that  was  matter  for  a  cross  action.  It  will  be  observed  that  the  distinc- 
tion between  that  case  and  the  others,  is  that  the  defence  there  was  not  the 
inferiorit}^  of  the  article  procured  by  the  broker,  or  the  badness  of  his  work, 
but  a  subsequent  independent  tort.  However,  in  Mondel  v.  Steele,  8  M.  &  W. 
871,  the  court  said  that  there  were  exceptions  to  the  practice  of  allowing  the 
defence  of  the  inferiority  of  the  thing  done  to  that  contracted  for,  to  be 
applied  in  reduction  of  damages  :  and  they  intimated,  that  in  actions  for  an 
attorney's  bill,  or  for  freight,  the  defence  would  not  be  allowed,  unless  it 
went  to  the  extent  of  denying  that  any  benefit  at  all  had  been  derived.  See, 
however,  the  distinction  taken  in  Hill  v.  Featherstonhaugh,  between  a  useless 
item  severable  from  the  rest  of  the  account,  and  one  inseparable. 

[In  a  modern  case  {Dakin  v.  Oxley,  15  C.  B.  N.  S.  646)  an  attempt  was 
made  to  push  very  far,  and  to  apply  to  a  totally  distinct  class  of  cases,  the 
rule  laid  down  by  Lord  EUenborough  in  Farnsivorth  v.  Garrard,  that  "  lohere 
there  has  been  no  beneficial  service  there  shall  be  no  pay."  In  Dakin  v.  Oxley, 
a  shipowner  sued  a  charterer  for  the  freight  of  coals,  and  the  latter  pleaded 
that  owing  to  the  negligence  and  unskilfulness  of  the  master  and  mariners  in 
the  navigation  and  management  of  the  ship,  the  coals  were  so  damaged  on 
the  voyage  that  on  their  arrival  at  the  port  of  discharge  they  were  of  less 
value  than  the  freight,  and  were  abandoned  to  the  shipowner.  This  plea 
admitted,  as  will  be  observed,  that  the  goods  arrived  as  coals,  and  were  of 
some  value.  The  Court  of  Common  Pleas  refused,  in  a  judgment  which 
exhausted  the  subject,  to  uphold  this  defence,  and  laid  down  distinctly  that 
by  the  law  of  England  '•  where  goods  have  arrived,  though  damaged,  the 


'[•2-\'2  ciTTKic    V.   i'<»\vi:i,i.. 

frri^ht  in  payable  by  tin- onlinary  tcniis  of  tin- cliartrr-party  :  aiui  the  i|Ufb- 
tioii  of  rortuitoiis  (iaiiia^i-  iiiii>t  br  scltU-d  with  the  iiixUTwrltcrs,  and  that  of 
ciilpabU-  (Uiina<;t',  in  a  distinct  jirocefdin^  fur  .siuli  ilaiiiai;i-  against  ttu-  ship, 
captain,  or  owners;"  set-  also  linhinsDH  v.  Kjiii/ftts,  L.  U.  s  C.  l».  4»;,', ;  Mrr- 
chdiit  ShippiiKj  Co.  V.  Aniiit(tiif,  L.  I{.  'J  t^.  H.  \\'.\.  In  a  sindlar  case,  there 
mit;ht  now  be  a  counterclaim  uniler  the  Judicature  Acts  for  the  damage;  see 
iiifrd,  p.  'M. 

Independently  of  the  Judicature  Act,]  It  Is  settletl  by  Stn-ft  v.  Hhnj,  anil 
I'lniltnii  V.  l.nttimiirf,  that,  where  an  article  Is  warranted,  and  the  warranty 
is  not  complied  with,  tlu'  vendee  has  three  courses,  any  on*-  <if  which  he  may 
purs\ie.  1.  He  uuiy  refuse  to  receive  the  artich'  at  all:  the  power  to  |)iirsue 
tills  ilrst  course,  however,  not  extending  to  cases  where  tlu-re  has  Iteeii  a 
warranty  upon  the  sale  i}{  aspi-n'rir  rhitltfl,  and  where,  the  property  passing  by 
the  contract,  it  is  not  competent  to  the  vendee  to  rescind  it  without  the  con- 
sent of  the  vt-ndor,  or  a  stipulation  to  that  ell'eet.  See  the  observations  of 
the  jud;;es  in  the  case  of  Dnirsnn  v.  Collin,  10  C.  B.  523;  also  Pardons  v.  Sfx- 
tim,  4  ('.  H.  ^(l^'J.  '2.  He  may  receive  It,  and  brln:;  a  cross  action  for  the  breach 
of  the  warranty;  or.  3.  He  nuiy,  witliout  l)rin^inir  a  cross  action,  use  the 
breacli  of  warranty  In  reduction  of  the  dama:;es,  in  an  a<-tiou  broui;ht  by  the 
vt'Udor  for  the  price;  i.r.,  to  the  extent  of  the  dlWereiice  between  the  ai^reetl 
pri«"«'  or  allciied  value,  and  the  real  value  at  the  tiun-  of  delivery  as  reduced 
by  the  breach  of  contract;  but  if  there  be  any  further  damage,  Ix'sides  that 
so  allowed  in  al)atenu-nt  of  t lie  price,  he  must  l>rini;  a  cross  action.  MmiiUl 
v.  Stci-lf,  8  M.  v<^  W.  H.'js  :  and  see  /iiij>j>-  v.  Utirhiilt/^,  l.'>  .M.  &  W.  .V.IM. 

It  was  once  thought,  and  indeed  laid  down  by  Lord  Khh>n  In  Curtis  v.  Jinn- 
nnij,  3  Esp.  82,  that  the  vendee  mii;ht,  on  dlscovt-rlujir  the  breach  of  warranty, 
rescind  the  contract,  return  the  chattel,  and,  if  he  had  paid  th«'  i)rice,  recover 
it  l)ack.  This  doctrine,  which  was  oppo.sed  to  Wrttton  v.  Dowiifs,  nntr,  p.  20, 
is,  liowever,  overruled  by  Stnit  v.  lilinj,  and  (ii»n}>prtz  v.  Ihitton,  1  C.  &  M. 
207;  ."i  Tyrwh.  232 ;  and  it  is  dear  that,  thou<;h  the  noncomjiliance  with  flie 
warranty  may  [where  the  property  has  not  passed]  justify  him  in  refusin;; 
to  receive  the  chattel,  it  will  not  justify  him  in  returninix  it.  and  suin*:  to 
recover  back  the  price  [Foster  v.  Smith,  IH  C.  B.  loCj ;  unless,  indeed  he 
return  it,  havinir  kept  it  (as  he  lias  a  rlyht  to  do,  see  lAirrymer  v.  Smith,  1 
B.  &  C.  1)  such  a  time  only  as  was  necessary  for  a  fair  examination.  In  which 
case  lie  cannot  be  considered  as  having  received  It  at  all.  See  Okill  v.  Smith, 
1  Stark.  107;  Jordan  v.  Sorlun,  4  M.  &  W.  l.").'i;  Street  v.  Bluy,  Youiifj  v.  Cole, 
3  Biui;.  N.  C.  730;  where  a  distinction  was  drawn  between  the  effect  of  a 
breach  of  warranty,  and  of  a  total  failure  of  consideration.  [See  also 
Gomprrtz  v.  liartlett,  2  E.  &  B.  84'.),  and  (iiirueij  v.  U'omrrslnj,  4  E.  &.  B.  1.33.] 
And  probaljly  the  distinction  between  a  condition  and  a  wnrranty,  as  pointed 
out  by  Mr.  Justice  Vauuhan  Williams  in  Dmcson  v.  Colli.t,  10  C  B.  530,  will 
be  found  to  obviate  any  difliculty  that  may  be  supposed  to  exist,  in  deciding 
what  are  the  cases  in  which  a  vendee  can  refuse  to  accept,  or  can  return  the 
article,  and  either  resist  payment  of  the  price,  or  recover  it  back  if  paid. 

A  warranty  properly  so  called,  can  only  exist  where  the  subject-matter  of 
the  sale  is  ascertained  and  existing,  so  as  to  i)e  capable  of  being  inspecteil  at 
the  time  of  the  contract,  and  is  a  collateral  engagement  that  the  specific 
thing  so  sold  possesses  certain  qualities :  but  the  property  passing  by  the 
contract  of  sale,  [Dixon  v.  Yates,  5  B.  &  Ad.  313;  Gilmour  v.  Supple,  11 
Moo.  P.  C.  C.  551,]  a  breach  of  the  warranty  cannot  entitle  the  vendee  to 
rescind  the  contract,  and  revest  the  property  in  the  vendor,  without  his  con- 


CUTTER    V.    POWELL.  1233 

sent;  the  vendee  mnst  therefore  resort  to  an  action  for  such  breach,  or  give 
it  in  evidence  in  reduction  of  tlie  price,  or  as  an  answer  to  the  action  if  the 
breacli  renders  tlie  article  wliolly  wortliless. 

But  wliere  the  subject-matter  of  tlie  sale  is  not  in  existence,  or  not  ascer- 
tained at  the  time  of  the  contract,  an  engagement  that  it  shall,  when  existing 
or  ascertained,  possess  certain  qualities,  is  not  a  [mere]  warranty  but  a  con- 
dition, the  performance  of  which  is  precedent  to  any  obligation  upon  the 
vendee  under  the  contract,  because  the  existence  of  those  qualities  being 
part  of  the  description  of  the  thing  sold,  becomes  essential  to  its  identity, 
and  the  vendee  cannot  be  obliged  to  receive  and  pay  for  a  thing  different 
from  that  for  which  he  contracted.  See  [Mchol  v.  Godts,  10  Exch.  191 ;  Jos- 
ling  V.  Kingsford,  13  C.  B.  N.  S.  447;  He>jxDorth  v.  Hutchinson,  L.  II.  2  Q.  B. 
447]  the  observations  of  Mr.  Justice  Yaughan  Williams  in  Dun-son  v.  Collis, 
10  C.  B.  530,  [and  of  Lord  Blackburn  in  Boioes  v.  Shand,  2  App.  Cas.  455,] 
tlie  judgment  of  Lord  Abinger  in  Chanter  v.  Hopkins,  4  M.  &  W.  399;  [the 
judgment  in  Barr  v.  Gibson,  3  M.  &  W.  390,  Gompertz  v.  Barllett,  2  E.  &  B. 
849,  Lucy  v.  Mouflet,  5  H.  &  N.  229,  and  the  judgment  of  the  Exchequer 
Chamber  in  Behn  v.  Burness,  3  B.  &  S.  756,  and  of  Blackburn,  J.,  in  Kennedy 
V.  Panama,  &c.,  Mail  Co.,  L.  R.  2  Q.  B.  587. 

But  although  the  general  rule  is  as  above  stated,  it  is  open  to  the  parties, 
if  so  minded,  to  contract  when  selling  specific  goods,  that  a  particular  stipu- 
lation, such,  for  instance,  as  one  relating  to  the  nature  or  condition  of  the 
goods,  shall  be  conditional  to  the  validity  of  the  sale  ;  and  if  this  is  the  con- 
tract really  intended,  the  buyer  maj'  repudiate  the  contract  and  return  the 
goods,  even  after  their  delivery,  on  its  appearing  that  the  affirmation  in  ques- 
tion is  not  correct.  In  this  class  of  cases  the  sale  is  not  al)solute,  with  a 
warranty  or  condition  superadded,  but  conditional,  and  to  be  null  if  the  affir- 
mation is  incorrect.  Bannerman  v.  White,  10  C.  B.  N.  S.  844,  was  a  case  of 
this  class.  There,  on  a  sale  of  hops  by  sample,  a  preliminary  affirmation  was 
made  by  the  seller  that  no  sulphur  had  been  used  in  the  treatment  of  them. 
This  undertaking,  without  which  the  buyers  would  not,  as  the  seller  knew, 
have  gone  on  with  the  treaty  which  resulted  in  the  sale,  was  honestly  given, 
but  in  fact  incorrect.  The  court  held  on  the  facts  that  the  contract  was  not 
a  mere  sale  with  a  warranty  superadded,  and  that  the  buyers  might  repudiate 
the  contract  even  after  the  delivery  of  tlie  hops.  See  also  the  judgment 
already  referred  to  of  the  Exchequer  Chamber  in  Behn  v.  Burness,  3  B.  «&  S. 
755,  756 ;  and  as  to  what  stipulations  are  to  be  deemed  conditions  on  the  sale 
of  specific  goods;  Gattorno  v.  Adams.  12  C.  B.  N.  S.  500;  and  see  the  notes 
to  Chandelor  V.  Lopus,  ante,  vol.  1.] 

But  although  Street  v.  Blay,  and  Poulton  v.  Lattimore  clearly  established 
that  where  there  was  a  breach  of  warranty,  that  might  be  given  in  evidence 
in  reduction,  in  an  action  of  indebitatus  assumpsit  for  the  price,  or  a  cross 
action  might  be  lirought  upon  the  warranty,  yet  it  is  the  opinion  of  a  writer 
of  great  merit  and  learning  (Mr.  Starkie)  that  "  Avhere  there  is  a  specific  bar- 
gain as  to  price,  but  no  warranty,  and  goods  inferior  in  value  to  those  con- 
tracted for  have  been  delivered,  the  vendee  must,  ichere  it  is  practicable  to  do 
so  loithoui  ptrejudice,  return  the  goods,  and  thus  rescind  the  contract  in  toto  ; 
and  if  he  does  not,  must  be  taken  to  have  acquiesced  in  the  performance  of 
the  contract."  Stark.  Ev.  vol.  2,  p.  879,  2nd  edit.  [The  learning  upon  this 
branch  of  law  has  however  been  rendered  obsolete  by  the  provisions  of  the 
Judicature  Act,  1873,  infra,  and  the  discussion  of  Mr.  Starke's  opinion,  which 
followed  in  former  editions,  has  been  therefore  omitted.] 


1J:;J  CL'TTKU    \.    I'OW  i:i,i>. 

It  litis  l)ci-ii  said  in  siiinc  cii-si-s.  tlitit  ilif  (lilriiilaiii.  'i  In-  iinuii  !<•  roniiiul 
tliut  till-  Ikmu'III  rrc-t'iv»'tl  was  not  lliat  wiiirli  In-  stipiilatfd  fi>r,  must  jflvt-  tlu* 
plaiiititr  notic-i'  of  iiis  iiilciition.  llowover,  thr  olisrrvatloii  nuuli-  oii  thin 
siilijiil  liy  Lord  Klli'ul>orou;;li,  in  linMtn  v.  Ilnttn-,  st-i'ins  i-oncluslvf.  viz., 
tliat  if  tlir  |)laintilf  suf  upon  a  ijiiuutnin  tnt-ruit,  tiio  vi-ry  f(»rni  of  Ids  own  dt-c- 
laratioii  j^ivi-s  Idin  notic-o  tliat  tlu-  udiMpiacy  of  tlu-  considrration  may  be-  dis- 
puted. 

VVitli  respect  io  quant nm  cf  ritluitiini,  it  l.s  haiil  by  I'arke,  .1.,  in  'J'/titriit"n  \. 
Plari',  1  M.  &  Uol).  211»,  timt  •'  Where  a  party  eujuaifes  to  «li)  certain  siH-ellletl 
worlv  on  certnin  specilled  terms,  and  in  a  certain  speeitied  manner,  but  in  fart 
(iocs  not  perform  tlie  work  so  as  to  ••orrespoml  with  tlie  speeiliration,  In-  is 
not,  of  course,  entitled  to  recover  tlie  price  ajjreeii  on  in  tlie  speciticat ion. 
Nor  can  he  recover  according  to  the  actual  value  of  the  work,  as  if  there  had 
l)een  no  special  contract.  What  the  )dalntitl'  is  entitled  to  recover  is  tlic 
price  a;;reed  on  in  the  speciticalitm,  subject  to  a  tleduction ;  ami  the  measure 
of  that  deduction  is  the  sum  it  wouhl  take  to  alter  the  work  so  a.s  to  make  it 
correspond  with  the  speclllcatlon."  .Vs  there,  ))erha|is,  micht  he  ca.ses  to 
which  tills  rule  couhl  not  be  with  perfect  ju.stlce  applied,  it  probal)ly  was 
only  iaiti  down  by  the  learned  jud^e  with  reference  to  such  as  that  immedi- 
ately before  him. 

In  Chitppil  V.  IlirkK,  '2  <".  i  M.  L'U,  Hayley,  !».,  says,  •The  rule  is,  tliat  if 
the  contract  be  not  faithfully  p<-rfornie«l,  tin-  plaintill'  shall  be  entitled  only 
to  recover  the  value  of  the  Work  and  materials  supplietl."  Lord  KllenlM>r- 
oufjh's  rule,  laid  down  after  coiisultin;;  tlie  jiitlj;es  In  Fitnmirnrlh  v.  (iunnnl, 
wa.s,  "  The  claim  shall  be  co-cxtcnslve  with  the  benefit." 

In  the  American  courts,  the  rule  on  this  subject  seems  t«)  be  tlie  same  a.s 
that  reco<;nised  in  the  courts  here  [before  the  Judicature  .Vet],  namely,  that 
where  a  |)lainlitr  declares  upon  a  general  count  for  work  done,  jjoods  .soUl,  or 
the  like,  under  a  special  contract,  the  defendant  may  jitve  in  evidence  ever}'- 
thini;  that  alVects  directly  the  value  of  the  .-ubject  of  the  claim,  as  between 
the  parties,  includini;  a  breach  of  warranty,  in  reiluctlon  of  dama-ies.  [lie 
was  not,  however,  by  our  law  bound  to  do  so,  an<l  if  in  an  action  a;;ainst  him 
on  the  special  contract  he  luul  j>aid  into  court  the  sum  claimed,  he  was  not 
tlioreby  estoppeil  from  brinuini;  his  cross-a<tioii  fur  defective  perfornianee. 
Davis  V.  Jliihjrs,  L.  K.  t',  c^.  IJ.  f.h7. 

In  the  state  of  New  York  the  nile  Is  extended  further,  under  the  name  of 
recoiipmiiit  (^as  it  is  there  called),  or  diminution  of  damaj^res.  in  virtue  of 
which  a  defendant  in  any  action  upon  a  sitirittl  coiUrdct,  even  uiuler  seal,  can, 
by  j^ivinjj  notice,  set  up  by  way  of  recouiunent  any  breach  of  the  said  con- 
tract by  the  plaintitl',  so  as  to  reduce  the  ilainai^es  tlu-reby.  The  defence, 
however,  cannot  be  pleaded  in  bar  of  the  action.  See  the  notes  to  the  4th 
American  edition  of  '•  Smith's  Leadini;  C'a.ses,"  p.  45.  by  Messrs.  Hare  &  Wal- 
lace; and  for  cases  of  diminution  of  damajyes  by  way  of  ncouper  in  our 
courts,  see  Iceley  v.  Grcir,  (5  N.  &  M.  4G9,  (a). 

And  now  by  Order  XIX.  r.  3  of  the  Rules  of  the  Supreme  Court,  it  is  pro- 
vided that  "  a  defendant  in  an  action  may  set  oft",  or  set  up,  by  way  of 
counter-claim  against  the  claims  of  the  plaintirt',  any  right  or  claim,  whether 
such  set-oft'  or  counter-claim  sound  in  damages  or  not,  and  such  set-oft"  or 
counter-claim  shall  have  the  same  ett'ect  as  a  statement  of  claim  in  a  cross- 
action,  so  as  to  enable  t1ie  court  to  pronounce  a  final  judgment  in  the  same 
action,  both  on  the  original  and  on  the  cross-claim." 

And  bv  Order  XXI.  r.  17,  "  where  in  any  action  a  set-oft"  or  counter-claim 


CUTTER    V.    POWELL.  1235 

is  established  as  a  defence  against  tlie  plaintiffs  claim,  the  court  may,  if  the 
balance  is  in  favor  of  the  defendant,  give  judgment  for  the  defendant  for 
such  balance,  or  may  otherwise  adjudge  to  the  defendant  such  relief  as  he 
may  be  entitled  to  upon  the  merits  of  the  case." 

Before  leaving  the  first  exception  to  the  general  rule,  that  Avhile  the  special 
contract  remained  open  an  action  of  indebitatus  assumpsit  would  not  lie,  it 
may  be  well  to  notice  a  large  class  of  decisions  forming  only  an  apparent  ex- 
ception; that  is  to  say,  cases  in  which  the  special  contract  being  unper- 
formed, a  new  contract  has  been  implied  from  the  conduct  of  the  parties  to 
pay  a  remunei'ation  commensurate  with  the  benefit  derived  from  the  partial 
performance.  Thus,  if  a  shipowner  contract  to  carry  goods  from  A.  to  B. 
at  a  certain  freight,  and  does  not  perform  this  contract,  but  the  goods'  owner 
voluntarily  accepts  the  goods  at  a  point  short  of  the  original  destination,  in 
such  a  manner  as  to  raise  an  inference  that  the  further  carriage  is  dispensed 
with,  a  new  contract  will  be  implied  to  pay  a  compensation  in  the  nature  of 
freight,  for  that  portion  of  the  voyage  which  has  actually  been  performed. 
Mulloy  V.  Backer,  5  East,  316;  the  judgment  in  Hunter  v.  Prinsep,  10  East, 
378;  Luke  v.  Lyde,  2  Burr.  883;  Christy  v.  Boic,  1  Taunt.  300;  Mitchell  v. 
Darthcz,  2  Bing.  N.  C.  555;  Vlierboom  v.  Chapman,  31  M.  &  W.  230;  Blasco 
V.  Fletcher,  14  C.  B.  N.  S.  14;  The  SoUomsten,  L.  E.  1  A.  &  E.  293.  So  where 
the  master  was  justified  by  the  imminence  of  war  in  refusing  to  proceed  to- 
the  original  destination,  he  was  not  held  bound  to  deliver  the  goods  at  an  in- 
termediate port  without  receiving  compensation  for  the  carriage.  The  Teu- 
tonia,  L.  R.  2  A.  &  E.  395,  4  C.  P.  171,  and  see  Cargo  ex  Argus,  L.  R.  5  P.  C. 
134.  In  these  cases,  as  is  obvious,  the  freight  2'>ro  ratti  itineris  becomes  due, 
not  under  the  charter-party,  but  ])y  a  new  contract  inferred  from  the  conduct 
of  the  parties. 

But  Mhere  a  portion  of  a  cargo  Avas  justifiably  sold  at  a  port  short  of  the 
destination  in  order  to  raise  funds  to  repair  sea  damage  to  ship,  although  the 
part  sold  fetched  a  higher  price  than  it  would  have  done  at  the  port  of 
destination,  and  the  price  realised  was  allowed  to  the  charterer  on  a  general 
average  statement,  and  was  received  by  him  from  the  shipowner,  it  was  held 
that  the  latter  was  not  entitled  to  recover  pro  rata  freight  on  the  part  which 
had  been  sold.  Hopper  \.  Burness,  1  C.  P.  D.  137;  and  see  Metcalfe  v.  Bri- 
tannia Irnntvorks  Co.,  1  Q.  B.  D.  613,  aflirmed  2  Q.  B.  D.  423. 

It  must  further  be  observed  that  where  a  special  contract  has  ))een  only 
partly  performed,  the  mere  fact  that  the  part  performance  has  been  beneficial 
is  not  enough  to  render  the  party  benefited  by  it  liable  to  pay  for  this  advan- 
tage ;  it  must  be  shown  that  he  has  taken  the  benefit  of  the  part  performance 
under  circumstances  sufficient  to  raise  an  implied  promise  to  pay  for  the 
work  done,  notwithstanding  the  non-performance  of  the  special  contract. 
Thus,  in  a  modern  case,  the  plaintiff  having  undertaken  to  complete  certain 
work  for  a  specified  price  on  houses  belonging  to  the  defendant,  the  whole 
to  be  completed  by  a  particular  day,  and  to  the  satisfaction  of  a  surveyor  who 
was  named,  failed  to  complete  the  work  according  to  the  terms  of  the  con- 
tract, but  did  work  upon  the  houses.  The  defendant  afterwards  resumed 
the  possession  of  the  houses,  and  was  therefore,  at  the  time  of  the  trial,  to 
some  extent  enjoying  the  fruit  of  the  labours  of  the  plaintiff.  It  was  held 
notwithstanding  that  the  plaintiff  could  not  recover  either  on  the  special  con- 
tract, or  for  work  and  labour.  For  the  special  contract  had  not  been  per- 
formed, and  the  mere  fact  that  the  defendant  had  taken  possession  of  his- 
own  houses,  upon  Avhich  work  had  been  done,  did  not  afford  an  inference 


1-J:»»i  CCTTKl:    V.     I'nWK.LI,. 

tliiit  III-  liatl  (li-.i»fiisf(l  wltli  tin-  roiiditioii'*  of  till-  spfclnl  njrrooin««nt.  or  tliut 
III-  hull  coiitracttMl  to  pay  for  tlu>  work  artiially  (lon«>  nrconllny  to  iii.:i^iir<- 
and  valiif.     .ynnio  v.  Hiitt,  «  K.  &  B.  738] 

'I'lie  m-xt  cxn'ptioii  to  tlif  ^jeiUTul  rule,  lliut  iio  action  of  imlthiiit:,..^  .;.>- 
miiupnit  will  111-  wlille  the  spt'clal  contrurt  rt-nmln.H  nnpfrfornuHl,  \h  to  he 
found  In  a  class  of  cases  which  establish  the  proposlthtn,  that  when  one 
party  has  absolntely  n-fnse<l  to  perform,  or  has  incapacitated  Idniself  from 
perfonnln^  liis  side  of  tiie  contract,  the  other  party  may  res<dnd  the  eon- 
tract,  and  sne  for  what  he  lias  already  done  under  It,  upon  a  '/ihihIuih  mtruil. 
'I'iial  he  may  rescind  It  up«)n  an  nhmilutf  reftisal  liy  the  other  party  to  per- 
form Ids  part,  is  proved  by  Withrrx  v.  /tt>nii>lil.i,  the  fai'ts  of  which  have  been 
already  stated.  There,  the  plaintitr  havln:;  refused  to  pay  for  the  loads  on 
delivery  pursmmt  t<»  his  contract,  the  ilefendunt  was  hehl  entitled  to  rescind 
it.  ••  If  the  plaintiir,"  .said  Tattcson,  J.,  '"had  merely  failed  to  pay  for  any 
[(articular  load,  that,  of  itself,  ndi;lit  not  have  lu'cn  an  excuse  to  the  defend- 
ant for  <lcliverini;  no  more  straw"  [see  Jimmmithn  v.  }'</m»»/,  4  H.  &  S.  20«'i] ; 
"but  the  |>lalntlll'  licre  expn-ssly  refuses  to  pay  for  the  loa«ls  as  delivered; 
tlie  defendant  Is  therefore  not  liaiile  for  ceasing  to  perfr>rm  his  part  of  the 
contnut." 

'I'ld-i  case  was  <-ommented  on  In  Frunklin  v.  Milhr,  4  A.  •■<;  K.  ."I'.i'.l,  and  the 
same  doctrine  laid  down.  '•  The  nile  ls,"snld  Coleridire.  .].,  "  that  in  reselnil" 
Inij,  as  in  maklu!;  a  c«)ntraet,  both  parties  must  concur."  In  Withem  v.  AVj/- 
uoliln,  each  load  of  straw  was  to  be  paid  for  on  delivery.  When  the  plaintifT 
sal<l  that  he  would  not  pay  for  his  loads  on  delivery,  that  was  a  ^^^l/  faihire, 
and  the  defendant  was  no  lontrer  bound  t<»  <lellver.  In  such  a  case  It  may  be 
taken,  that  the  party  refuslni;  has  abandoned  the  contract.  [.Vnd  see  A'z 
partr  Cfi'ilmrrs.  L.  K.  8  Ch.  -•"^'.> ;  .Uonjnn  v.  nuin.  ]..  U.  !•)  C  V  l.'>;  /»i  re 
Pho-nix  Co.,  4  I'll.  n.  lOS:   A'j-  purlr  Stnphtnn,  K)  Ch.  I),  .'.st;.] 

The  refusal  which  is  to  authorise  the  rescission  of  the  contract,  must  be 
an  iiii(|ualitled  one.  See  the  judi;ment  of  the  court  in  Hhri'mtpenjer  v.  .!)i«/er- 
Kiiti,  ;'.  Kxch.  l.'iS  [nnti  It  must  be  acted  on  as  a  breach  by  the  person  who  ha.s 
a  rii;ht  to  insist  on  the  perfonnance  of  the  contract.  The  Danuhe,  d'r.,  Hail- 
iraij  Cn.  V.  X<'no.H,  11  V.  B.  N.  S.  1.".2;  l.'J  C.  B.  N.  S.  H2'>].  In  Lin>-n  v.  AVr.*, 
tried  before  Mr.  J.  ('olerid<;:e,  at  the  Monmouthshire  Summer  .Vssi/es,  1H:J7, 
the  action  was  nssuinpsit,  on  a  contra«*t  to  build  a  house  for  a  specified  sum, 
with  a  count  for  work  and  labour,  and  materials.  It  aiipeared  that  the  house 
was  not  yet  completed,  but  that  a  i;ood  deal  of  extra  work  had  been  done  l)y 
the  defendant's  order;  that  the  plaintiH'  had  called  on  him  to  pay  for  all  that 
had  l)een  done,  and  that  he  had  replied  "  that  he  woulil  not  —  perhaps  never." 
On  this  evidence  the  plaintitt"s  counsel  subndtted  that  he  was  entitled  to 
recover  on  a  quantum  meruit  for  the  extra  work,  and  also  to  treat  the  special 
contract  as  rescinded.  Coleridge,  J.,  admitted  that  this  would  have  been  so, 
had  the  refusal  to  pay  been  absolute  and  unqualitled;  but  thought  that,  in 
this  case,  the  refusal  to  pay  must  be  construed  with  reference  to  the  demand, 
which  was  made,  so  far  as  the  work  done  under  the  contract  was  concerned, 
too  soon.  He  therefore  held  the  plaintitt'  entitled  to  recover  only  for  the 
extras.  This  note  of  Lines  v.  Rees.  has  been  kindly  perused,  and  its  accuracy 
confirmed,  by  the  defendant's  counsel.  Mr.  Greaves. 

[As  to  an  absolute  refusal  to  perform  the  contract  and  a  rescission  on  that 
ground,  see  also  Cnrtv.  Amben/ate  Bailway  Co.,  17  Q.  B.  127;  Reidv.  Hos- 
kins.  4  E.  &  B.  979;  Avenj  v.  Boxcden,  5  E.  &  B.  714;  fi  E.  &  B.  953,  S.  C; 
Bartholomen'  v.  ^fark^c^ck■,  15  C  B.  N.  S.  710;  Leoson  v.  X.  B.  Oil,  d:c.,  Co.,  It. 
R.  8  C.  L.  ;W9. 


CUTTER    V.    POWELL.  1237 

In  Avery  v.  Bowden,  the  defendant  had  agreed  by  charter-party  to  load  a 
cargo  on  board  the  plaintiff's  ship  at  Odessa,  certain  running  days  to  be 
allowed.  The  declaration  contained  a  count  for  not  loading,  which  alleged 
that  before  the  expiration  of  the  running  days,  the  defendant  had  dispensed 
with  the  ship's  remaining  at  Odessa.  To  this  count  the  defendant  pleaded 
that  before  the  cause  of  action  arose  war  had  been  declai'ed  between  England 
and  Eussia,  and  that  the  contract  had  thus  been  rescinded. 

The  facts  appear  to  be  that  after  the  arrival  of  the  ship  at  the  port  of 
loading,  and  before  the  declaration  of  war,  the  agent  of  the  charterer  had 
repeatedly  told  the  master  that  he  had  no  cargo  for  the  ship,  and  that  he,  the 
master,  had  better  go  awa}^ ;  but  the  master  had  continued  to  require  a  cargo 
until  the  declaration  of  war  was  known  at  Odessa,  which  was  before 
the  expiration  of  the  ship's  laying  days.  It  also  appeared  that  in  a  con- 
versation between  the  plaintiff  and  the  defendant  in  England,  after  the 
declaration  of  war,  the  defendant  had  told  the  plaintiff  tliat  he  had  deter- 
mined not  to  load  the  ship,  but  to  rely  on  the  chapter  of  accidents,  and  that 
he  had  telegraphed  to  his  agent  at  the  port  of  loading  not  to  purchase  a 
cargo. 

Upon  these  facts  it  was  held  by  the  Court  of  Queen's  Bench,  that,  assum- 
ing that  the  agent  of  the  charterer  had  on  his  part  renounced  the  contract 
before  the  declaration  of  war,  this  renunciation,  not  having  been  accepted  by 
the  master,  did  not  either  constitute  a  dispensation  or  give  a  cause  of  action. 
Lord  Campbell,  C.  J.,  in  delivering  the  judgment  of  the  court  in  favour  of 
the  defendant,  said,  "  According  to  our  decision  in  Hochstcr  \.  De  la  Tour,  2 
E.  &  B.  G78,  to  Avhich  we  adhere,  if  the  defendant,  within  the  running  days, 
and  before  the  declaration  of  war,  had  positively  informed  the  captain  that 
no  cargo  had  been  provided  or  would  be  provided  for  him  at  Odessa,  and  that 
there  was  no  use  in  his  remaining  there  any  longer,  the  captain  might  have 
treated  this  as  a  breach  and  renunciation  of  the  contract,  and  thereupon  sail- 
ing away  from  Odessa,  he  might  have  loaded  a  cargo  at  a  friendly  port  from 
another  person ;  whereupon  the  plaintiff  would  have  had  a  right  to  maintain 
an  action  on  the  charter-party  to  recover  damages  equal  to  the  loss  he  had 
sustained  from  the  bi'each  of  contract  on  the  part  of  the  defendant.  The 
language  used  by  the  defendant's  agent  before  the  declaration  of  war  can 
hardly  be  considered  as  amounting  to  a  renunciation  of  the  contract ;  but  if 
it  had  been  much  stronger,  we  conceive  that  it  could  not  be  considered  as 
constituting  a  cause  of  action,  after  the  captain  still  continued  to  insist  upon 
having  a  cargo  in  fulfilment  of  the  charter-party." 

This  judgment  was  aflfirmed  in  the  Exchequer  Chamber,  where  the  judges 
stated  that  in  their  opinion  there  was  no  evidence  of  a  dispensation.  See  also 
Barrick  v.  Bubn,  2  C.  B.  N.  S.  563,  in  which  case  a  charter-party  had  been 
made  between  an  English  and  Russian  subject  for  the  loading  by  the  latter 
of  a  cargo  at  a  Eussian  port :  and  it  was  held  that  an  intimation  made  to  the 
master  at  the  port  of  loading  by  the  agent  of  the  charterer  that  he  had  ceded 
the  charter-party  with  all  its  rights  and  obligations  to  a  third  party,  and  that 
he  must  address  himself  to  that  person  for  a  cargo,  was  not  sujh  a  renuncia- 
tion of  the  charter  as  entitled  the  ship-owner  to  sue  for  a  l^reach  at  tliat  time ; 
this  intimation  having  been  given  before  the  time  for  loading  had  expired.] 

Where  a  party  has  incapacitated  himself  from  performing  his  side  of  the 
contract,  the  same  conseqiience  follows  as  if  he  had  absolutely  refused  to  do 
so.  Robson  and  Sharp'',  v.  Drummond,  2  B.  &  Ad.  303,  was  an  action  by 
Sharpe  and  Robson,  who  were  coach-makers,  against  the  defendant,  for  not 


1288  CUTTKIt    V.    I'OWKI.L. 

payini?  for  a  cliariot  which  he  had  hlruil  of  Sharps  for  the  yearx,  at  scvoiity- 
llve  ;iiihieas  per  aiiiiiiin  ;  S!iarj>e  was  to  pahit  aiul  keep  it  in  repair.  Tlie 
tlefeudant  liail  ctmtracted  witli  Sliarpe  alone.  Wlien  tlireo  years  out  of  the 
tlve  were  expired,  thai  person,  having  dis.soived  partnersldp  witli  Uubtton, 
tran.sferred  tlie  stoeic-in-trude,  and  among  otlier  tilings,  the  chariot  in  <iues- 
tion,  to  liiiii.  i{ot)S()n  oft'ered  to  continue  the  contract  with  tlie  defendant, 
who  refused  to  Iiave  aiiytlung  to  say  t(»  liiin,  l)Ut  oll'ered  to  complete  Ids 
engagenuiit  witli  Sharpe.  Sliarpe,  however,  stated  that  tliat  was  n<»w 
ini|)ossil)le.  I  iider  tliese  circumstances,  the  court  helil  tliat  the  defendant 
had  a  right  to  rescind  the  contract,  and  decline  to  lieep  tlie  chariot  the 
ryiiiaiiiiiig  tw«»  years.  "'Hie  fact,"  said  Tarkt-,  J.,  '"of  Sliar(>e's  having 
transferred  his  interest  in  the  contract  to  Uohsfni,  was  e<piivaleiit  to  s;iyiiig, 
'  I  will  not  perform  my  part  of  the  contract;'  and  this  is  an  answer  to  the 
present  action." 

On  tlie  same  i)riiiciple  was  decided  PUimhe  v.  Vulburn,  S  IJiiig.  14,  the  facts 
of  which  will  be  pn-sently  stated:  see  likewise  J'ahiwr  v.  Tf)iij>lr,  0  A.  i  K. 
50H;  Amur  v.  Frnnin,  '.>  A.  v'i  K.  .')1M ;  and  /»>;/•-'  v.  IlunruniJ,  2  ('.  11.  !•<).'>.  In 
this  case  the  plaintiH'  luul  agreed  to  hoard  and  lodge  the  defeiitlant  and  his 
son,  and  In  payment  for  such  board  anil  lodgiiii;,  to  take  certain  furniture 
tieposited  upon  his  preiiii.ses.  After  the  agreeiiu-iit,  ami  before  the  action,  a 
creditor  of  the  defendant  obtained  a  judi;nieiit  against  him,  and  took  the 
furniture  in  execution.  The  c<nirt  held  that  the  case  was  the  .same  in  effect 
as  if  the  defemlant  had  himself  taken  away  the  gooils,  and  that  the  plaintitr 
was  entitled  to  recover  the  value  of  the  board  and  lodging  upon  the  common 
count  as  if  the  special  contnu-t  had  never  existed.  See  also  the  observations 
in  the  latter  i)art  of  the  jud;;ment  in  Sutuls  v.  Clar/,-,  H  C.  11.  7(;2. 

lint  where  a  certillcate  l)y  the  defendant's  surv«'yor  of  the  due  execution 
f)f  work  was  made  l)y  the  contract  a  condition  precedent  to  the  payment  of 
tlie  price,  it  was  hehl  that  tlie  fraudulent  collusion  of  the  defendant  willi  the 
surveyor  to  withhold  such  certillcate  did  not  entitle  the  plaintiff  to  treat 
the  contract  as  at  an  end  and  sue  upon  an  hnhhitfihis  count  for  the  jirice. 
Milner  v.  Field,  5  Kxch.  821);  and  it  was  said  the  only  remedy  was  a  cro.s.s- 
action. 

(Ml  a  (piestioM  of  tliis  sort  d»pfiid>  the  coiitiMuance  of  a  contract  after  the 
death  of  one  of  the  j»arties  thereto;  if  it  was  one  involving  personal  confi- 
dence, the  death  of  the  party  confided  in,  rendering  its  perfonnance  impos- 
sible, puts  un  end  to  it;  otherwise  not.  See  Wentn'nrth  v.  Ciick\  10  A.  &  E. 
42 ;  [so  likewise  in  contracts  for  personal  services,  the  death  of  either  party 
puts  an  cud  to  them  unless  it  be  otherwise  agreed.  Famur  v.  Wilson,  L.  K. 
4  C.  P.  744.] 

It  must,  liowcver,  be  observed,  that,  in  a  case  of  this  sort,  the  breach  of 
contract  which  entitles  the  other  contractor  to  rescind,  must  consist  in  the 
non-performance  of  something  essential.  ••  If  the  plaintiff,"  said  Patteson, 
J.,  in  Withers  v.  Reyinilds,  '•  had  merely  failed  to  pay  for  any  particular  load, 
that  in  itself  might  not  have  been  an  excuse  to  the  defendant  for  delivering 
no  more  straw."  Accord.  Fillieul  v.  Armstrong,  7  A.  E.  557;  Freeman  v. 
Taylor,  8  Bing.  124 ;  Franklin  v.  Miller,  4  A.  &  E.  599  ;  Ehrensperger  v.  Ander- 
son, 3  Exch.  158;  Corcoran  v.  Proser,  Ex.  Ch.  Ir.  22  W.  R.  222;  [Frecth  v. 
Burr,  L.  R.  9  C  P.  208;  43  L.  J.  C.  P.  91.]  Nor  must  it  be  a  breach  occa- 
sioned by  his  own  wrongful  refusal  to  accept  performance.  See  Fitt  v. 
Cassnnet,  4  Jf.  &  Gr.  898. 

[In  Hoare  v.  Rennie,  5  II.  &  N.  19,  the  contract  was  for  the  delivery  of  6(57 


CUTTER   V.    POWELL.  1239 

tons  of  iron  to  be  shipped  from  Sweden,  in  the  months  of  June,  July,  August, 
and  September,  in  about  equal  proportions  each  month,  at  a  certain  price, 
delivered  in  London. 

In  an  action  by  the  vendors  for  a  refusal  to  accept  or  pay  for  the  iron,  a 
plea  justifying  the  refusal  on  the  ground  that  the  plain tifis  had  shipped  in 
June  a  much  smaller  quantity  than  that  which  was  required  under  the  con- 
tract, and  wei'e  never  ready  and  willing  to  deliver  such  smaller  quantity  until 
after  the  defendants  had  had  notice  that  the  plaintiffs  were  unaljle  to  fulfil 
their  agreement  as  to  the  June  shipment,  was  upheld  by  the  Court  of 
Exchequer.  This  case,  though  questioned  in  Jonassohn  v.  Young,  4  B.  &  S. 
296,  was  cited  with  approbation  in  Bradford  v.  WiUiams,  L.  K.  7  Exch.  259. 

In  Simpson  v.  Crippin,  L.  R.  8  Q.  B.  14,  however,  a  precisely  similar  point 
was  raised  in  the  Court  of  Queen's  Bench,  and  an  opi^osite  decision  was 
arrived  at. 

In  that  case  the  defendants  had  agreed  to  supply  from  6,000  to  8,000  tons 
of  coal,  to  be  delivered  into  the  plaintiff's  Avagons  at  the  defendant's  collieries, 
in  equal  monthly  quantities  during  the  period  of  twelve  months  from  the  1st 
July.  During  the  month  of  July  the  plaintiffs  took  from  the  defendants  only 
158  tons,  and  on  the  1st  August  the  defendants  gave  notice  to  the  plaintiffs, 
that  in  consequence  of  the  plaintiffs  having  taken  so  small  a  quantity,  they 
cancelled  the  contract.  In  an  action  for  refusing  to  deliver  the  residue, 
it  was  held  that  the  breach  by  the  plaintiffs  in  taking  a  smaller  quantity  did 
not  justify  the  defendants  in  rescinding  the  contract,  and  Blackburn,  J.,  said, 
"  If  the  principle  upon  which  that  case,"  i.e.,  Hoare  v.  Rennie,  "  was  decided 
is  that  wherever  a  plaintiff  has  broken  his  contract  first  he  cannot  sue  for  any 
subsequent  breach  committed  by  the  defendant,  the  decision  would  be  opposed 
to  the  authority  of  many  other  cases." 

In  Roper  v.  Johnson,  L.  L.  8  C.  P.  167;  42  L.  J.  C.  P.  65,  in  which  a  similar 
point  arose,  the  decision  in  Simpson  v.  Crippin  was  treated  as  conclusive. 

Since  the  last  edition  of  this  work,  the  case  of  Hoare  v.  Rennie  has  been 
much  discussed  in  Honck  v.  Midler,  7  Q.  B.  D.  92;  50  L.  J.  Q.  B.  529;  and 
Mersey  Steel  <fc  Iron  Co.  v.  Naylor,  9  Q.  B.  D.  648;  9  App.  Cas.  434;  53 
L.  J.  Q.  B.  497. 

In  Honck  v.  Muller  the  defendant  sold  to  the  plaintiff  2,000  tons  of  pig 
iron,  at  42s.  a  ton,  to  be  delivered  to  the  plaintiff  F.  O.  B.  at  maker's  wharf, 
at  Middlesborough,  "in  November,  1879,  or  equally  over  November,  Decem- 
ber, and  January  next,  at  M.  per  ton  extra."  The  plaintiff  failed  to  take  any 
iron  in  November,  and  claimed  to  have  one-third  delivered  in  December,  and 
one-third  in  January,  which  the  defendant  refused,  and  gave  notice  that  he 
cancelled  the  contract.  The  majority  of  the  court  held  that  on  the  true  con- 
struction of  the  contract  the  plaintiff  was  bound  to  elect  and  give  notice  to 
the  defendant  of  his  option  in  time  to  allow  the  latter  to  deliver  the  whole 
or  part  in  November,  and  that  the  plaintiff  had  not  so  declared  his  option, 
and  consequently  could  not  maintain  the  action.  Assuming,  however,  as  the 
plaintiff  contended,  that  the  defendant  had  become  bound  to  deliver  the  iron 
in  three  equal  instalments,  Bramwell  and  Baggallay,  L.JJ.,  were  of  opinion 
that  the  plaintiff  having  broken  the  contract  by  not  taking  the  November 
instalment,  could  not  insist  upon  the  defendant  delivering  the  residue.  That 
to  hold  that  he  could,  would  he  to  enable  the  plaintiff  against  the  will  of  the 
defendant  to  substitute  a  contract  to  take  1,333'  tons  for  one  to  take  2,000. 
They  ti-eated  Hoare  v.  Rennie  as  well  decided;  and  Bramwell,  L.  J.,  distin- 
guished Simpson  v.  Crippin,  on  the  ground  that  the  breach  there  was  not  wit'i 


1l'40  cittki:   v.   i'n\vi:i,i,. 

rt'spect  to  till'  first  instalinciit,  uii«l  that  the  runtrui-t  Imviiit;  Iki-ii  pnrt  |H-r- 
foriiu'tl,  cmild  not  In-  wholly  undoiii'.  Ilrt'tt.  L.  J.,  dlssciitrd  from  tills  jinl«- 
luciit,  Hiul  wiiH  oT  opinion  that  it  wuh  Iniiiiutcriul  wliftlicr  the  brrucli  wom  In 
rcHpert  of  tin;  (Irst,  or  of  a  luti-r  di-llvery,  uiid  that  >/«iy»j«»(i  v.  ('rijtpin  was 
Inroiisistfiit  with  Ifixirr  v.  Ittunif,  which  latter  caso  ht;  thought  was  wrongly 
decidod,  and  lu-  hrld  that  In  tin-  i-asi>  hi-fon-  tlu-in  the  plaiiitUr  was  entitled  to 

HUCCC'Od. 

In  the  Mirtttij  SUil  A  Iron  Co.  v.  Xdijlnr,  the  defendants  had  a;;reed  to  pur- 
chase from  the  plalntitrs  r*,0<M)  t<jns  of  steel  hlooms,  to  he  ilellveretl  on  hoard 
at  Liverpool  hy  instalments  «>f  I.ihm)  tons  monthly,  commeiieini;  with  Jan- 
uary, IHSl,  payment  to  he  made  within  three  days  after  n'ceipt  of  shippini; 
dociimeiits.  After  tlu"  plalntitrs  had  «lellvcred  a  portion  of  the  first  Instal- 
ment, a  petition  was  presented  to  wind  tip  the  plaintifr  company,  and  the 
defendants  actlnj;  upon  the  erroneous  advice  of  their  solicitor,  refused  to 
make  the  payments  due  In  res|iect  of  the  <|uantlty  d«-livered.  In  the  mistaken 
view  that  pendlni:  the  petition  there  was  no  one  who  could  ijlve  them  a  valid 
<llscliar<;e  fur  the  amount  due.  An  order  to  wind  up  the  plalntlH'  company 
havini;  been  made,  and  a  ll(|uldator  appointed,  the  latter  refused  to  make  any 
further  ilcllverles,  on  tin-  ;;rouiid  that  the  defenilants'  refusal  to  pay  for  the 
•piautity  delivered,  ;;ave  him  the  rl;;ht  to  renounce  the  contract,  and  hroiiiiht 
the  action  to  recover  the  price  of  the  iron  delivered.  The  defendants  coun- 
terclalmed  damages  for  the  plalntilt's'  failure  to  «lellver.  Lonl  Coleridfre, 
C.  ,].,  held  that  the  li<|uldators'  ccmteiitlon  was  well  founded,  and  that  the 
conduct  of  tlie  defendants  had  absolved  the  plalntitrs  from  further  perform- 
ance of  the  contract,  and  precluded  the  defenilants  from  insistinj;  upon  It. 
His  ih"-i-iioii  was,  however,  reversed  hy  the  Court  of  .\ppeal.  and  the  reversal 
was  atllrmed  in  the  Mouse  of  Lords.  Lord  llramwell  heini;  a  jmrty  to  the 
decision.  The  latter  learned  lord  re|>uiliated  the  dictum  attributed  to  him  In 
Ilimck  v.  Miillrr,  "That  in  no  ca.se  where  the  contract  had  been  part  per- 
formed, could  one  party  rely  on  the  refusal  of  the  other  to  jjo  on,"  pointing; 
out  that  every  case  must  depend  upon  its  special  circumstances.  Both  in  the 
Court  of  Appeal  and  the  House  of  Lords  the  rule  of  law  jjovernlnj?  ca.ses  of 
this  class,  as  laid  down  by  Lord  C'oleridice  in  Fndh  v.  liurr,  wan  referred  to 
with  approval.  His  lordship  there  says,  after  reviewinjj  the  authorities, 
"  There  has  been  some  contlict  amongst  them,  but  I  think  it  may  be  taken 
that  the  fair  result  of  them  is,  as  I  have  stati-d,  namely,  that  the  true  ques- 
tion is,  whether  the  acts  and  conduct  of  the  party  evince  an  intention  no 
lomrer  to  be  bound  by  the  contract."  Api»lyiiii;  this  principle  to  the  ca.se 
before  them,  their  lordships  had  no  dilllculty  in  decldinuc  that  the  conduct  of 
the  defendants  in  •withholdins;  payment  for  a  i)articular  delivery,  under  the 
erroneous  advice  of  their  solicitor,  did  not  evince  such  an  intention.  Lord 
BramwcU,  in  pointinjj  out  that  in  Ilonck  v.  Mulhr  the  conduct  of  the  plaintiff 
clearly  did  evince  such  an  intention,  reiterated  his  ajjproval  of  Iloare  v. 
liennie,  which  he  treated  as  decided  upon  the  same  principle. 

In  the  last  edition  of  this  wf)rk  ITnarc  v.  linniip  was  treated  as  beini; 
opposed  to  the  wcijilit  of  authority.  The  explanation,  however,  of  tlie 
diversity  of  opinion  as  to  that  case  is  probably  that  jj;iven  by  Bowen,  L.  J., 
in  the  Mersey  Steel  Co.  v.  Naylor,  at  p.  G71  of  9  Q.  B.  Ti.,  namely,  "  that  the 
plea  was  a  special  plea,  which  set  out  various  facts  from  which  two  diflferent 
inferences  misrht  quite  well  be  drawn,  and  as  one  <n-  th;-  other  is  drawn,  the 
decision  would  appear  correct,  or  the  reverse." 

The  importance  attached  by  some  members  of  the  court  in  Ilonck  v.  Mnlh  r 


CUTTER    y,    POWELL.  1241 

to  a  bvearli  with  reference  to  the  first,  as  distinguished  from  a  later  instal- 
ment, may,  it  is  submitted,  be  explained  by  similar  considerations,  when  it 
is  remembered  that  the  question  in  all  these  cases  is  one  of  fact.  The  dis- 
tinction between  a  first  and  second  instalment,  though  immaterial  in  point 
of  law,  may  be  very  material  in  point  of  fact,  since  a  failure  or  refusal  to 
perform  the  first  act  under  the  contract  will  probably  in  most  cases  be  much 
more  cogent  evidence  of  an  intention  not  to  be  bound  by  the  contract,  than  a 
subsequent  failure  by  a  person  who  has  already  by  part  performance  evinced 
an  intention  of  holding  to  his  bargain. 

The  mere  insolvency  or  bankruptcy  of  either  party  does  not  of  itself 
operate  as  a  rescission  of  the  contract.  See  Ex  parte  Chalmers,  L.  R.  8  Ch. 
289;  Morgan  v.  Bain,  L.  R.  10  C.  P.  15;  Re  Phoenix  Bessemer  Co.,  4  Ch.  D. 
108;  Ex  parte  Stapleton,  10  Ch.  D.  586.  See  as  to  a  subsequent  disclaimer 
by  the  trustee.  In  re  Sneezum,  3  Ch.  D.  4G3.] 

It  being  therefore  established,  that  where  one  contractor  has  absolutely 
refused  to  perform,  or  rendered  himself  incapable  of  pei'forming,  his  part  of 
the  contract,  the  other  contractor  may,  if  he  please,  rescind,  such  act  or  such 
refusal  being  equivalent  to  a  consent  to  the  rescission,  the  remaining  part  of 
the  proposition  above  stated  is,  that  upon  such  rescission  he  has  a  right,  if  he 
have  done  anj'thing  under  the  contract,  to  sue  immediatehj  for  compensation 
on  a  qnantum  meruit.  That  he  should  do  so  is  consistent  with  reason  and 
justice,  for  it  is  clear  that  the  defendant  cannot  be  allowed  to  take  advan- 
tage of  his  own  Avrong,  and  screen  himself  from  payment  for  what  has  been 
done  by  his  own  tortious  refusal  to  perform  his  part  of  the  contract,  which 
refusal  alone  has  enabled  the  plaintifT  to  rescind  it. 

He  cannot,  however,  recover  on  the  special  contract,  and  must,  therefore, 
be  entitled  to  sue  upon  a  quantnm  mernit,  founded  on  a  promise  implied  by 
law,  on  the  part  of  the  defendant,  to  remunerate  him  for  what  he  has  done 
at  his  request ;  and,  as  an  action  on  a  quantum  meruit  is  founded  on  a  promise 
to  pay  on  request,  and  there  is  no  ground  for  implying  any  other  sort  of 
promise,  he  may,  of  course,  bring  his  action  immediately.  This  point  is 
decided  by  Planche  v.  Colhurn  and  Another,  8  Bing.  14.  The  declaration  in 
that  case  stated  that  the  defendants  had  engaged  the  plaintiff"  for  lOOZ.  to 
write  a  treatise  on  Costume  and  Ancient  Armor,  to  be  published  in  "The 
Juvenile  Library;"  that  the  plaintiff  had  written  part,  and  was  willing  to 
complete  and  deliver  the  whole  for  insertion  in  that  publication  ;  but  that  the 
defendant  would  not  publish  it  there,  nor  pay  the  sum  of  100^  There  was 
also  the  common  count  for  work  and  labour. 

At  the  trial  it  appeared  that  the  plaintiff  had  been  engaged  on  the  terms 
above  stated,  that  he  had  completed  part  of  his  work,  that  he  had  made  a 
journey  in  order  to  inspect  a  collection  of  ancient  armor,  and  made  di-awings 
therefrom ;  but  that  he  had  never  tendered  or  delivered  his  performance  to 
the  defendants,  they  having  finally  abandoned  the  publication  of  "  The  Juve- 
nile Library,"  on  the  ill  success  of  some  of  the  first  numbers  of  the  work. 

The  jury  having  found  a  verdict  for  the  plaintiff  with  50?.  damages,  the 
court  was  moved  for  a  new  trial.  It  was  contended,  that  the  plaintiff"  could 
not  I'ecover  on  the  special  contract,  since  he  had  not  tendered  or  delivered 
his  work,  and  that  he  could  not  recover  on  the  indebitatus  count  for  work 
and  labour,  because  the  special  contract  was  still  open.  The  court,  however, 
refused  the  new  trial,  holding  that,  as  the  defendants  had,  by  putting  an  end 
to  "  The  Juvenile  Library,"  incapacitated  themselves  from  performing  thr>ir 
engagement  with  the  plaintiff"  to  publish  his  Avork  there,  they  must  be  taken 


IJtii  crrTKi:   v.   I'<»nvki.i.. 

In  liavf  aliuiiildiu'd  tlii'  contract  altogether ;  aii*l  tliai  lie  ml^ht  rei'over  for 
vvliut  he  Imd  (lone,  upon  n  •iiiuntuin  mfruil. 

"  Tlie  fact  >va.H,"  .said  Tindal,  L.  ('.  .1.,  ■■  that  tlie  defendants  not  oidy  r^ua- 
pended,  l>ut  actnatly  tmt  an  end  to,  '  Tlie  Juvenile  I.li)rary.'  They  hml  Itroken 
their  contract  with  the  plaintitT;  and  an  attempt  was  ntado,  hut  i|ulte  uiimic* 
<-cHsfully,  to  show  that  the  plaintilf  had  afterwards  entereil  into  a  now  ron- 
tra<'t  to  allow  tlieni  to  pidtlisli  his  hook  as  a  si-|)ar:ite  work.  I  a;;ree  that 
wlien  a  special  contract  Is  In  exlsten<'e  an«l  open,  the  plaintitf  cannot  Hue  on 
a  nnnntnin  iinrilit  :  part  of  the  question,  therefore,  here  was.  whether  tlu- 
contract  did  exist  or  not.  It  distinctly  appeared,  that  the  work  was  llnaily 
aliaiidoncd.  and  the  jury  found  tluit  no  new  contni<'t  Iwid  heen  entered  Into. 
I'luler  these  circiunstan<"es,  the  plaintiff  oui;ht  not  to  lose  the  fruit  of  his 
laliour,  and  there  is  no  ;;round  for  the  application  that  has  heen  niaile." 

[Aiul  upon  the  .same  principle,  where  a  pentun  had  iN-on  retnine<l  a.s  a 
broker  l>y  the  directors  of  a  company  upon  the  terms  that  he  was  to  receive 
a  certain  sinn  at  once,  and  a  furtlier  .sum  when  all  the  shares  shiudd  have 
heen  allotted,  and  the  ilin-ctors  afterwards,  without  any  default  on  the  part 
of  tlie  broker,  wound  up  the  company  l>efore  all  the  shares  had  iH-eii  disposed 
of,  thus  n  iiiltrimj  iiiii>i>.i.tihlr  thr  tillnlinrht  >•/  nil  ihr  Hhiirm,  It  was  held  that 
the  l>roker  was  entitled  to  recover  not  the  stipulated  sum,  hut  a  reasonable 
compensation  for  his  services.  Inrhhnld  v.  Thf  UV,H/»r«  Xfili/hrmj  f'njTi-r 
r,,..  17  c.  n.  N.  S.  7:w.] 

It  would  .seem  that  the  .same  Act  by  one  of  the  parties  to  a  contract  which 
;;ave  tlie  other  party  who  had  partly  performetl  It  a  rl;:ht  to  resclml  It.  and 
siu-  iu  i'ikIi  liitaiii!*  ii.'tstimiisit  for  what  he  miyht  have  iloiie  under  it,  will,  In  case 
of  an  executory  contract  where  nothing;  has  b»en  tioiie  under  It.  amount  to  a 
brea<-h  of  the  contract  so  as  to  furnish  a  >;ronnd  of  ar-tlou.  Si-e  S/mrl  v. 
,SV<.;i.,  H  i.1  H.  :55K;  LunhirK  V.  I'ntnihjn,  S  ^^.  B.  ;{:i  ;  li,nr,lfll  V.  l\ir.^i>i,n,  10 
KasI,  .S.V.I;  Ford  v.  Tihij.W  W.  &.  ('.  ;i2o ;  Curt  \.  AmhrnjnU  linilinnj  r,,.,  17 
(^  \\.  r.'7;  and  in  the  case  of  lh.,hst,r  v.  Dp  In  Tniir.  '2  K.  v't  B.  r.7H,  the  Court 
of  (Queen's  Bench  held  that  such  rljjht  of  action  ml^ht  be  enforced  even 
before  the  «lay  appointed  by  the  contract  f«»r  Its  |H"rformancu  by  either  party. 

In  tliat  case  the  declaration  stateil  that  In  consideration  the  plaintill'  would 
agree  witli  the  defeinlant  to  enter  Ids  .service  on  the  Isi  of  Juue.  is.",^*,  as  a 
courier,  and  travel  with  him  as  such  courier  for  three  months  from  the  ^aid 
1st  of  .luue.  lit  tlie  rate  of  10/.  per  month,  the  defendant  undertook  to  receive 
him  into  ills  employ  on  the  .said  1st  of  .June  upon  those  teniis.  The  declara- 
tion tlu'U  averred  that,  from  the  time  of  the  agreement  until  t/if  tiiuc  irhi-n 
thp  di'j'iinlant  irrntujj'ulhj  refused  to  jierform  his  promise  and  exonerated  the 
plaintitl'  from  performance,  he,  the  ]>laintitr,  was  always  ready  and  willing  to 
perform  the  agreement.  Breach  —  that  the  defendant /)*;/brp  the  said  lat  of 
June,  1852,  refused  to  engage  the  plaintitf  or  perform  his  promise,  and  then 
wrongfully  exonerated  the  plaint itl' from  the  i)erformance  of  the  agreement, 
to  the  damage  of  the  plaintitt".      fhi-  trrit  tnis  dntid  on  the  22iid  of  May,  ls.",L'. 

It  was  contended,  in  .irrest  of  judgment,  that  although  a  refusal  by  the 
defendant  to  perform  the  contract,  if  continued  up  to  the  time  fixed  for  its 
performance,  would  give  the  plaintitf  a  right  of  action,  yet  the  refusal  was 
revocable  up  to  .such  time,  and  the  plaintitf  could  not  sue  until  its  expiration. 
The  court,  however,  decided  that  the  plaintitf  was  not  bcnind  to  wait  until 
after  the  first  of  June  to  bring  his  action,  and  that  the  declaration  was  good. 
But  see  the  judgment  of  Parke,  B.,  in  Philpotts  v.  Etnns.  o  M.  &  W.  47.5. 
Perhaps  the  cases  are  reconcilable  by  supposing  that  the  judgment  in  Iloch- 


CUTTER   V.    POWELL.  1243 

ster  V.  Dc  In  Tour  applies  to  cases  in  which,  in  conseqnence  of  the  refnsal, 
something  has  taken  place  to  interfere  with  the  performing  the  contract 
wlien  the  time  arrives. 

[It  is  impossible,  however,  even  on  this  ground,  to  reconcile  the  judgment 
of  Parke,  B.,  just  referred  to,  in  all  respects,  with  the  more  modern  decis- 
ions; and  in  The  Damibe,  tfcc,  RaUivay  Co.  v.  Xenos,  11  C.  B.  N.  S.  152,  13 
C.  B.  N.  S.  825,  which  has  been  already  cited,  it  was  held,  in  accordance  with 
these  decisions,  that  where  a  contract  is  for  the  performance  of  a  thing  on  a 
given  day,  and  the  person  who  is  to  perform  it  declares  before  the  day  that 
he  will  not  perform  it,  then  the  other  party  has  the  option  of  at  once  treating 
this  declaration  as  a  breach  of  the  contract.  Accord.  Frost  v.  Knight,  L.  R. 
7  Ex.  111.  In  that  case  the  defendant  had  promised  to  marry  the  plaintifl'  so 
soon  as  his  (defendant's)  father  should  die.  During  his  father's  lifetime  he 
absolutely  refused  to  marry  the  plaintifl",  and  it  was  held  in  the  Exchequer 
Chamber,  overruling  the  decision  of  the  Court  of  Exchequer,  that  for  this 
breach  an  action  was  well  brought  during  the  father's  lifetime.  And  see 
Wilkinson  v.  Venty,  L.  R.  6  C.  P.  206. 

In  Johnstone  \.  Milling,  16  Q.  B.  D.  400;  55  L.  J.  Q.  B.  102,  an  attempt  was 
made  to  apply  the  doctrine  of  Hochster  v.  De  la  Tour,  and  Frost  v.  Knight,  to 
the  case  of  a  lease  with  several  covenants.  There  the  defendant  had  become 
tenant  to  the  plaintiff  for  a  term  of  21  years,  determinable  at  the  end  of  the 
first  four  years  by  six  months'  notice.  There  was  a  covenant  by  the  plaintiff 
to  rebuild  the  premises  at  the  expiration  of  the  first  four  years  on  receipt  of 
a  six  months'  notice  from  the  lessee  requiring  him  to  do  so.  Before  the 
expiration  of  the  four  years  the  plaintiff  had  on  more  than  one  occasion  told 
the  defendant  that  he  would  be  unable  to  procure  the  money  for  rebuilding, 
and  in  consequence  of  such  statements  the  latter  gave  the  six  months'  notice 
required  by  the  contract  to  determine  the  tenancy  at  the  end  of  the  first  four 
years.  He,  however,  continued  to  occupy,  paying  rent  to  the  plaintifi"s 
mortgagees,  on  the  chance  of  the  plaintifl"  being  able  to  find  the  money  to 
rebuild.  In  an  action  brought  by  the  plaintifl"  against  the  defendant  for  an 
independent  claim,  the  above  facts  were  proved  in  support  of  a  counter-claim 
for  damages  founded  on  the  repudiation  hy  the  plaintifl"  of  his  liability  under 
the  covenant  before  the  time  for  jDcrforming  it  had  arrived.  The  Divisional 
Court  held  that  though  the  lease  was  determined  before  the  time  had  arrived 
for  performance  the  defendant  was  entitled  to  treat  the  plaintiff's  declaration 
of  inability  to  procure  the  money  as  an  anticipatorj^  breach  within  the  prin- 
ciple of  the  above  cases,  justifying  the  defendant  in  rescinding  the  contract 
and  suing  for  damages,  and  they  gave  judgment  for  the  defendant.  This 
judgment  was,  however,  reversed  in  the  Court  of  Appeal.  That  court  held, 
that  the  facts  proved  did  not  establish  a  repudiation  by  the  lessor  of  his  obli- 
gation under  the  covenant,  but,  assuming  that  they  did,  they  held  that  the 
effect  of  an  anticipatory  breach  amounting  to  a  repudiation  is  to  give  the 
other  party  a  right  to  rescind  the  contract,  keeping  it  alive  only  for  the  pur- 
poses of  bringing  an  action  upon  it,  or  to  hold  to  the  contract  and  await  the 
time  for  performance.  But  that  such  repudiation  beforehand  is  not  a  breach 
at  all,  unless  the  other  party  elect  to  treat  it  as  one,  and  that  he  cannot  con- 
tinue to  reap  the  benefit  of  the  contract  and  at  the  same  time  claim  to  treat 
it  as  rescinded.  They  held  in  the  case  before  them  that  the  lessee  had  not 
so  elected,  but  had  continued  to  cling  to  the  contract,  giving  the  requisite 
notice  under  it  to  determine  the  tenancy.  The  court  seemed  to  be  of  opin- 
ion also,  though  they  did  not  actually  decide  the  point,  that  a  declaration 


]-2\\  (TTTKI:     V.    I'oWr.LL. 

befoi't'hftiul  of  inability  t<»  lu-rfonii  <»iie  fovenant  in  a  lease  wliieli,  if  Ijroken 
when  tli(*  time  for  perfornianrc  arrived,  wonld  not  liave  enableii  tlie  lessee 
to  tl\ro\v  np  tlie  lease,  Surpli'ic  v.  Fnrnsiriirth,  7  M.  v<.  (!.  r.7<">,  conld  not  jns- 
tify  the  lessee  in  reseindini?  the  contrnet  within  tlie  principle  of  the  caMes 
referred  to.] 

There  is  a  class  of  cases  which  ajjpear  at  first  si;jht  rjurtl;/  Hindlar  to 
Plnnrhp  v.  CuVnirn,  and  liofisini  v.  Dnimmond.  ante,  p.  38,  hnt  which  will  l)e 
fonnd,  on  closer  inspection,  to  be  distintjidshed  l)y  a  i)ecidiarity  whlcli  it 
may  be  nseful  liere  to  remarli.  1  alUuh'  to  those  cases  in  whicli  a  servant, 
who  has  enjjaged  to  serve  for  a  certain  time  at  certain  wa-jes,  is  tnrned  away 
l)y  his  master  before  the  period  for  wliich  he  had  en<;a<red  to  serve  has  ex- 
pired. In  snch  a  case  it  is  clear  that,  if  his  dismissal  l)c  in  conse<|nencc  of 
his  own  misconduct,  he  will  be  entitled  to  no  waives,  for  his  faithful  service 
is  a  condition  precedent  to  his  rijijlit  to  them,  and  that  condition  he  has  not 
performed.  Turner  v.  Rohinson,  0  C.  &  P.  15;  '>  B.  &  Ad.  7Ht) ;  Callo  v. 
Brnnnrkrr,  4  C.  &  V.  .'>1H;  Sjtitin  v.  AnwH,  2  Stark.  2.'»fi;  Anrnr  v.  Fraron,  9 
A.  &  K.  5JS;  Tiirnrr  v.  .U>tsnn,  14  M.  &  W.  llfi;  rjllnj  v.  A7irj;i,  11  Q.  B. 
742;  [unless  indeed  the  terms  of  the  agreement  be  such  .is  to  show  that  the 
Intention  of  the  parties  was  that  the  rijiht  to  waices  shouhl  be  dlvisilile.  Sec 
Button  V.  Thiimpsitn,  L.  H.  4  t'.  1*.  3:50.  In  that  case  the  plaintill'  had  l)een 
shipped  as  mate  on  board  defendant's  vessel,  on  a  voyajfe  from  Shields  to 
Alexandria  and  home,  "  voyay:e  iu)t  expected  to  exceed  twelve  months, 
amount  of  wajjes  per  calendar  montii,  5/.  lOx."  lie  had  been  drunken  and 
insubordinate  during  the  voyage  out,  and  being  on  slujre  at  Sullna  was  left 
behind,  and  the  slnp  came  home  without  him.  In  an  action  for  wages  for 
the  time  during  which  he  had  actually  served  on  board,  it  was  held,  Brett,  J., 
dissenting,  tliat  he  was  entitled  tf)  recover,  though  possibly  not  until  the 
whole  period  of  service  stipulated  for  liad  expired.] 

But,  if  the  dismissal  be  unjust,  the  master  cannot  Ity  his  wrongful  dis- 
charge prevent  the  servant  from  recovering  due  compensation.  Such  a  case 
seems  to  range  itself  under  the  rule  we  have  been  just  discussing.  The  mas- 
ter has  absolutely  refused  to  perform  his  contract  with  the  servant,  and  it  is 
apprehended  that  the  servant  has  thereu|>on  a  right  to  rescind  it,  and  to  sue 
upon  a  (innntnm  meruit  for  what  he  has  already  done  under  it.  See  the  judg- 
ment in  fAlh'n  V.  Ehrin,  11  Q.  B.  742. 

But  though  he  may  rescind  the  contract,  he  is  not.  it  has  been  said,  obliged 
to  do  so.  He  has  a  riirht.  it  has  been  said,  to  consider  it  still  in  existence,  to 
treat  the  wrongful  dismissal  as  no  dismissal  at  all,  and  to  demand,  at  the 
expiration  of  the  time  for  which  he  was  hired,  the  whole  of  his  stii)ulated 
wages,  —  not  on  a  quantum  meruit,  but  by  virtue  of  the  special  contract,  his 
own  part  of  which  he  may  then  safely  aver  that  he  has  performed,  his  readi- 
ness to  serve  during  the  rest  of  the  terra  being  considered  equivalent  in  law 
to  actual  service;  and  it  has  been  thought  that  he  may  sue  in  indehitatus 
assumpsit,  that  being  no  more  than  any  creditor  may  do  upon  an  executed 
special  contract,  and  his  action,  though  not  special  in  its  form,  being  still 
upon  the  special  contract  and  supported  by  the  same  evidence  by  which  a 
special  count  would  be  substantiated.  (inndeU  v.  Pontirnvj,  4  Camp.  37."),  is  a 
direct  authority  in  favour  of  tliese  petitions. 

That  was  an  action  brought  by  a  clerk  for  his  whole  (juarter's  salary 
against  his  master,  who  had  wrongfully  dismissed  him  in  the  middle  of  a 
quarter;  the  declaration  only  contained  the  common  count  for  work  and 
labour.     Lord  Ellenborough :  "  If  the  plaintiff  was  discharged  without  a  suf- 


CUTTER    V.    POWELL.  1245 

flcient  cause,  I  think  this  action  maintainable.  Having  served  a  part  of  the 
quarter,  and  being  willing  to  serve  the  residue,  in  contemplation  of  law  he 
may  be  considered  to  have  served  the  whole.  The  defendant  Avas  therefore 
indebted  to  him  for  work  and  labour  in  the  sum  sought  to  be  recovered." 

[This  peculiar  view  of  the  rights]  of  servants  and  agents  wrongfully  dis- 
missed, resulted  altogether  from  the  doctrine  of  constructive  service,  which 
originated  in  decisions  on  the  law  of  settlement ;  and  though  it  may  be  appli- 
cable to  some  other  cases  (see  Collins  v.  Price,  5  Bing.  132)  it  seems  difficult 
to  understand  how  it  can  be  rationally  applied  to  most  other  cases  of  special 
contract.  For  instance,  in  Plandie  v.  Colburn  it  would  have  been  impossible 
for  Mr.  Planche,  with  much  show  of  reason,  to  contend  that  he  had  construc- 
tively written  the  whole  treatise  on  armour,  when,  in  point  of  fact,  he  had 
only  finished  half  of  it.  It  has,  however,  been  applied  to  cases  of  servants, 
clerks,  and  agents;  and  perhaps,  therefore,  the  result  of  the  authorities  on 
this  subject  may  be,  that  a  clerk,  servant,  or  agent  wrongfully  dismissed, 
has  his  election  of  three  remedies  :  viz.,  that, 

1.  He  may  bring  a  special  action  for  his  master's  breach  of  contract  in 
dismissing  him,  and  this  remedy  he  may  pursue  immediately.  Pagani  v. 
Gandolfi,  2  C.  &  P.  370. 

2.  [It  was  once  thought]  that  he  might  w^ait  till  the  termination  of  the 
period  for  which  he  was  hired,  and  might  then  sue  for  his  whole  wages  [as  a 
debt  due  to  him  in  respect  of  complete  performance  of  the  contract  on  his 
part],  relying  on  the  doctrine  of  constructive  service,  Gandell  v.  Pontigny ; 
and  see  Collins  v.  Price,  5  Bing.  132;  and  Smith  v.  Kingsford,  3- Scott,  279, 
vide  tamen  the  observations  of  the  judges  in  Smith  v.  Hayvard,  post.  [See 
also  Feicings  v.  Tisdal,  1  Exch.  295,  and  the  opinions  of  the  judges  in  Emmens 
V.  Elderton,  4  H.  of  Lords  Cases,  624.  It  is  now,  however,  clear  that  this 
remedy  is  not  open  to  him,  for  he  cannot  allege  that  the  defendant  is 
indebted  for  work  done ;  but  it  does  not  follow  from  Fewings  v.  Tisdal  that 
a  special  action  of  debt  averring  a  contract  to  pay,  a  continuing  readiness  on 
the  part  of  the  servant  during  all  the  period  to  serve,  and  a  dispensation 
from  the  service  on  the  part  of  the  master,  might  not  be  maintained.  See 
the  opinion  of  Mr.  J.  Crompton  in  Emmens  v.  Elderton,  ubi  siqyra.^ 

3.  He  may  treat  the  contract  as  rescinded,  and  may  immediately  sue,  on  a 
quantum  meruit,  for  the  work  he  actually  performed ;  Planche  v.  Colburn; 
but  in  that  case,  as  he  sues  on  an  implied  contract,  arising  out  of  actual  ser- 
vices, he  can  only  recover  for  the  time  that  he  actually  served. 

This  last  was  the  point  really  decided  by  Lord  Tenterden  in  Archard  v. 
Horner,  3  C.  &  P.  349,  a  case  sometimes  (though,  it  is  submitted,  inconsider- 
ately) cited  for  the  purpose  of  showing  that  a  servant  wTongfully  dismissed 
cannot  after  the  expiration  of  the  term  for  which  he  was  hired  sue  in  indebi- 
tatus assumpsit  for  a  compensation  for  any  longer  period  than  he  has  actually 
served.  In  that  case  the  plaintifts  declared  on  a  special  count,  stating  a 
hiring  for  a  year,  adding  a  count  for  wages.  It  turned  out  that  the  hiring 
was  for  a  year,  determinable  by  a  month's  notice.  Lord  Tenterden  held  that 
they  could  not  recover  on  the  first  count,  on  the  ground  of  variance,  nor  on 
the  second  for  more  than  the  period  of  actual  service;  and  as  a  sufficient 
sum  had  been  tendered  to  cover  that,  he  directed  a  non-suit.  It  would  appear 
that  in  this  case  the  action  was  commenced  before  the  expiration  of  the  term, 
and,  if  so.  Lord  Tenterden's  ruling  is  perfectly  reconcilable  with  the  case  of 
Gandell  v.  Pontigny ;  and  this  it  probably  was  which,  on  its  being  contended 
in  Ridgioay  v.  Hnngerford  Market  Co.,  3  A.  &  E.  171,  that  the  plaintiff,  a  dis- 


1240  (TTTKK    V.    I'OWKI.L. 

missed  cltM'k,  wlio  had  wailid  till  the  i-xpi ration  of  tlio  torin  before  brinjiinfr 
liis  action,  could  nctt  niaintuiii  imlrhifadts  iis.<tu))ij)sit  for  his  whole  wayeH 
«'liciti(l  from  Mr.  .Justice  Coleridj4;e  the  remark  that,  ••  if  it  were  necessary, 
lie  sliould  liave  wished  for  time  to  consider  how  far  this  <|Uestion  Is  tleter- 
mined  by  the  doctrine  laid  down  by  Lord  'IVntenlen  in  Anhnnl  v.  Jfurner." 

That  the  decision  of  Lord  Tenterden,  in  Arrliard  v.  Ilorncr,  proceeded  on 
the  fjrounds  above  stated,  lias  been  since  asserted  by  the  court,  In  Smith  v. 
Ildi/iranl,  7  A.  &  K.  544.  In  that  case  the  plaintitt'had  lieen  hired  from  June 
1st  for  a  year,  determinable  by  three  months'  notice.  lie  was  turned  otf 
wiliiout  notice  on  Se|)teml)er  IDtii.  ami  commenced  an  action  on  Septend)er 
22ii(l,  iiavinj;  previously  oHered  to  serve  tin-  entire  i|uarter.  Tiie  declaration 
contained  a  special  count  on  which  the  plaintilf  failed,  by  reason  of  a  vari- 
ance, and  an  indihUntitx  count,  upon  which  4/.,  l)eiiis;  a  sutllcient  sum  to  cover 
tile  i)eri<Hl  of  arltatl  tirnirv,  i.e.,  to  the  22nd  of  September,  was  paiil  into 
court,  lie  was  held  to  be  entitled  to  no  more,  \\\nm  the  jrround,  that  (what- 
ever misrht  hav(>  been  the  result  if  he  had  Avaited  till  the  end  of  the  year  or 
of  the  current  (puirter)  he  could  not  recover  on  the  tinlrhitalus  count  in  re- 
spect of  work  done  tlurinj;  a  lime  which  had  not  elapsed  when  he  ct>mmence«l 
his  action.  It  must  be  admitted  tliat  the  Jud;;es  cast  strony  relleclions  u|>on 
dnmlfll  V.  /'oiitii/iiij,  without,  however,  overrulini;  it. 

It  would  not  b«'  ri<;ht  to  (juit  this  subject  without  noticini;  the  ca.se  of 
/•'urdh/  V.  J'riir,  2  N.  oi  K.  XVA.  in  which  a  dillVrent  construction  from  any 
tiiat  has  been  yet  suf;.f;ested,  was  put  upon  a  contract  very  sindlar  to  that  in 
Arrhnrd  v.  Ifonirr.  The  declaration  contained  a  count  for  schoolinj;,  hxlg- 
ins;:,  board,  meat,  drink,  &c.  The  last  count  stated,  that  In  consideration  that 
the  plaintiff  had,  at  the  request  of  the  defendant,  received  J.  \V.  as  his 
sdiolar,  and  that  J.  W.  had  left  the  plaintiirs  school  without  due  notice,  the 
defendant  prouused  to  pay  the  plaint! tl"  as  nuich  money  as  he  therefore  rea- 
sonai)ly  deserved  to  have.  It  api)eared  that  the  defendant  had  sent  J.  W.  to 
tills  pl.iiiitiir's  school,  and  taken  him  away  without  notice,  the  tenns  of  the 
school  beiivsj,  that  "  a  (piarter's  notice  is  refpiired  to  be  <;iven  before  the  re- 
moval of  any  young  gentleman,  or  to  pay  for  a  (piarler."  The  plaintitl"  hav- 
ing recovered  for  a  quarter,  it  was  contended,  on  a  motion  for  a  new  trial, 
that  the  special  count  was  not  proved,  and  that  the  plaintiff  could  not  recover 
on  the  indchilfitns  count,  because  the  consideration  was  not  actually  executed. 
The  court,  however,  held  it  was  so. 

"  The  terms  of  the  scIkjoI,"  said  the  Lord  Chief  Justice,  "are,  that  oO/.  a 
year  shall  be  paid;  but  that  if  the  scholar  .shall  be  taken  away  without  notice, 
an  additional  (luarter  shall  be  paitl.  Still,  however,  the  tiling  to  be  paid  for 
is  that  which  has  been  supplied.  The  price  for  half  a  year  is  l.j/. ;  but  if,  at 
the  end  of  half  a  year,  the  scholar  is  taken  away  without  a  (juartcr's  notice, 
the  price  for  the  first  half-year  is  15^  and  17/.  lOs." 

But  Eardly  v.  Pt-ice  has  since  been  overruled  by  the  case  of  Feicings  v. 
Tisdal,  I  Exch.  295.  That  was  an  action  of  indtbitatua  assumpsit  for  wages 
as  a  hired  servant,  and  was  brought  to  recover  a  month's  wages  claimed  ))y 
the  plaintiff,  who,  being  a  yearly  servant,  had  been  discharged  without  notice, 
and  received  wages  to  the  time  of  her  dismissal  only.  The  under-sheriff  be- 
fore whom  the  cause  was  tried,  non-suited  the  plaintiff,  upon  the  ground  that 
the  declaration  should  have  been  special,  and  the  Court  of  Exchequer  held  he 
was  right  in  so  doing. 

"  It  seems  to  me."  said  Baron  Parke,  in  his  judgment.  "  that  the  true  na- 
ture of  the  contract  between  a  master  and  his  servant  amounts  to  this,  that  it 


cuttp:u  v.  POWELL.  1247 

is  an  agreement  for  a  year's  service,  with  the  addition  that  the  master  may 
tnrn  the  servant  away  at  any  time,  on  giving  liini  a  month's  warning,  or  in 
lien  of  tliat,  a  montli's  wages.  It  is  retlning  to  say  tliat  tlie  montli's  wages 
given  under  sucli  circumstances,  are  an  additional  compensation  for  the  by- 
gone service;  and  I  cannot  help  thinking  that,  in  Eardly  v.  Price,  the  Court 
of  Common  Pleas,  in  oixler  to  ol)tain  justice  for  that  particular  case,  broke  in 
upon  the  rules  of  law.  Archard  v.  Horner  is,  in  my  opinion,  very  good  sense, 
and  lays  down  a  good  rule." 

The  right  to  rescind  the  contract  at  any  time  by  giving  a  month's  notice, 
or  in  lieu  thereof  a  month's  wages,  only  exists  in  the  case  of  contracts  with 
menial  servants.  See  Broxham  v.  Warfstaffe,  Exch.  H.  T.  1842,  5  Jur.  845. 
[And  it  seems  that  in  such  cases  the  servant  cannot  claim  board  wages,  Gor- 
don V.  Potter,  1  F.  &  F.  644.] 

Since  the  case  of  Fewings  v.  Tisdal,  and  the  observations  of  the  Judges  in 
Smith  v.  Hayward,  before  referred  to,  [it  can  hardly  be  doubted]  that  the 
case  of  Gandell  v.  Pontigny,  would  not  be  supported  at  the  present  day ;  and 
[the  opinion]  expressed  above  (p.  49)  that  a  servant  wrongfully  dismissed 
cannot  wait  till  the  termination  of  the  period  for  which  he  was  hired,  and 
then  sue  on  the  common  counts  for  his  whole  wages,  treating  the  service  as 
constructively  performed,  is  strengthened  by  the  observations  of  Patteson 
and  Earle,  JJ.,  in  Goodman  v.  Pocock,  15  Q.  B.  576,  a  case  which  appears  to 
have  shaken  still  further  the  ruling  in  Gandell  v.  Pontigny. 

In  Goodman  v.  Pocock,  the  i:)laintifl*,  a  commercial  traveller,  hired  for  a 
year  at  wages  payable  quarterly,  and  wrongfully  dismissed  in  the  middle  of  a 
quarter,  had  brought  an  action  for  wrongful  dismissal,  and  the  declaration 
contained  a  special  count  for  the  dismissal,  and  also  an  indebitatus  count  for 
work  and  labour.  The  judge  who  tried  the  cause  directed  the  jury  not  to 
take  into  account  the  services  rendered  during  the  broken  quarter,  as  these 
services  were  only  recoverable  under  an  indebitatus  count,  and  the  particulars 
of  demand  did  not  include  any  such  claim.  The  jury  gave  damages  accord- 
ingly, excluding  any  remuneration  for  the  services  during  the  broken  quarter. 
The  plaintifl"  thereupon  brought  a  second  action,  claiming  under  an  indebitatns 
count  the  value  of  those  services ;  but  the  court  held  that  the  second  action 
was  not  maintainable,  as  the  plaintifl"  had,  by  his  former  action,  treated  the 
special  contract  as  still  open,  and  having  recovered  damages  on  that  footing, 
he  could  not  afterwards  sue  on  an  indebitatus  count,  treating  the  same  con- 
tract as  rescinded.  The  court  also  held  that  in  the  first  action  the  jury  ought 
to  have  been  directed  to  take  into  consideration  the  services  actually  rendered 
during  the  broken  quarter,  in  awarding  damages  under  the  special  count. 
See  also  the  observations  in  the  judgment  of  the  Exch.  Chamber  in  Elderton 
V.  Emmens,  6  C.  B.  178;  [S.  C.  in  Dom.  Proc.  4  H.  of  Lords  Cases,  624]; 
Snelling  v.  Lord  Huntingfield,  note  {b),  1  C.  M.  &  K.  26,  and  Walstab  v. 
Spottiswoode,  15  M.  &  W.  501. 

[In  Gnckson  v.  Stones,  I  E.  &  E.  248,  where  a  contract  had  been  entered 
into  by  the  plaintifl'  to  serve  the  defendant  for  ten  years  in  the  capacity  of  a 
brewer,  and  the  defendant  had  undertaken  to  pay  to  the  plaintifl'  a  weekly 
sum  during  that  term,  it  was  held  that  a  temporary  illness  of  the  plaintifl', 
not  amounting  to  or  treated  as  a  dissolution  of  the  contract,  did  not  disen- 
title him  to  recover  the  weekly  payments  in  respect  of  the  time  during  which 
lie  had.  through  illness,  been  unable  to  w^ork;  the  contract  being  still  in 
force,  and  having  been  so  dealt  with  by  the  defendant.] 

Assuming  the  position  to  be  correct,  that  a  servant  or  agent,  wrongfully 


1248-1272  ciTTi:i:    \.   1'..ui.i,l. 

(lismissi'd,  niny  wait  till  thf  (•xi)iratl(>n  of  tlu*  tcnn,  and  then  maintain  an 
action  [in  the  natnrcj  of  indthitittus  dssumpsit  for  his  whole  wa^^es,  (|Ucstions 
may  arise  as  to  his  conduct  in  the  intermediate  lime,  and  liow  far  it  may 
atl'urd  the  master  a  defence,  or  j^found  for  miti^atini^  damages :  as,  for  in- 
stance, if  lie  have  before  the  expiration  of  his  term  hired  himself  to  another 
master.  See  Cuinmimj  \.  Columbine,  G  Dowl.  :17:J;  and  Siixk-  \.  J'hillijm,  5 
>r    &  \V.  27!). 

.V  qnestion  may  also  arise,  liow  far  the  first  nmster  nuiy  be  entitled  to  his 
intermediate  earninijs,  l)y  virtue  of  the  doctrine  asserted  in  I'hinnjKiint  v. 
lltii-flork\  1  Camp.  .">27 ;  Diplnck  v.  liliickhurne,  :\  Camp.  4:1;  [Morrison  v. 
Thompson,  L.  U.  '.»  i^.  B.  480.]  See  Patmore  v.  Culburn,  4  Tyrwh.  H4(»,  and  1 
C.  M.  &  It.  Cut. 

Where  the  contract  of  yearly  service  Is  put  an  end  to  by  consent  in  the 
ndddle  of  a  (juarter,  there  is  no  implied  cctntract  to  pay  ;»r«  r«/<"/,  imt  a  new 
aj^reement  to  pay  for  the  broken  part  of  the  year's  service  may  be  inferretl 
from  circmiistuiiifs.  wiiirii  sli<»uld  therefore  i»e  submitted  to  the  jury  :  [.nut- 
hitni  v.  ('rnilrii,  2  M.  &  fJ.  2.">.? ;  and  see  Thoinns  v.   W'illiitins,  1  .\.  v<i  K.  flH.'). 

'riiere  is  a  class  of  cases  in  which  a  special  contract  remains  open,  Imt 
somelhin;;  lias  been  done  by  the  plaintltT  heijoml  what  he  was  to  perfonn 
according;  to  the  contract  and  that  has  been  done  at  the  instance  of  tlie 
defendant.  In  such  ca.ses  the  extra  work,  not  belni;  nmler  the  contract  at 
all.  Is  the  subject  matter  of  an  action  fin  the  nature]  of  indifiitahis  nnnumpsit ; 
yet  the  contract  must  l)e  proved,  in  order  that  It  may  appear  how  much  was 
extra.     Buxton  v.  Cornish,  12  M.  &  W.  42G. 


BICKERDIKE   v.   BOLLMAN. 


MICH.  27  GEO.  S.  —  IN   THE  KING'S  BENCH. 
[reported  1  T.  R.  405.] 

A.,  a  creditor  of  B.  to  the  amount  of  llbl.  3s.  8c?.,  took  his  bill  for 
201.  on  C,  7vho  had  not  then^  nor  afterwards.,  any  effects  of  B. 
i?i  his  hands.  The  bill  lohen  due  was  dishonoured.,  and  no  notice 
thereof  was  given  by  A.  to  B. ;  still  A.'s  demand  on  the  bill  was 
not  discharged.,  but  he  may  sue  out  a  co7nmission  of  bankrupt 
against  B.,  and  his  debt  will  support  it. 

Case  for  money  had  and  received  to  and  for  the  use  of  the 
hankrupt,  before  his  bankruptcy.  2nd  count.  On  an  account 
stated  with  the  bankrupt.  3rd.  For  money  had  and  received 
to  and  for  the  use  of  the  plaintiffs  as  assignees.  4th.  An 
account  stated  with  the  assignees.     Plea,  non  assumpsit. 

This  cause  was  tried  at  the  last  assizes  for  the  county  palatine 
of  Lancaster,  before  Buller.,  J.,  when  the  jury  found  a  verdict 
for  the  plaintiffs,  subject  to  the  opinion  of  this  court,  on  the 
following  case : 

That  the  act  of  bankruptcy  was  committed  in  the  middle  of 
August,  1784.  That  in  the  month  of  August,  1784,  the  bank- 
rupt was  indebted  to  Greatrix  and  Co.,  the  petitioning  creditors, 
in  115?.  3s.  8d.  That  on  the  15th  of  September,  1784,  the 
bankrupt  drew  a  bill  for  201.  on  the  defendant  («),  "  who  then 
until  the  time  of  the  bankruptcy,  and  of  the  bill  becoming  due, 
was  a  creditor  of  the  bankrupt,"  payable  to  Greatrix  and  Co. 
two  months  after  date,  and  paid  the  same  to  them  on  account 
of  their  said  debt ;  which  bill  v/as  presented  for  payment  on  the 

(a)  The  words  between  the  inver-  on  the  argument,  with  the  consent  of 
ted  commas  were  added  by  the  court,       both  parties. 

1273 


1-J74  l:i(  lvl.l:l»IKh    \'.     linLl.MAN. 

l.Sth  of  Novt'iiiljcr  follow  iii^'  ;iml  iUsIiououiimI.  That  no  notice 
of  the  non-payment  of  the  bill  was  ever  ^'iven  by  (jieutrix  and 
Co.  to  the  bankrupt,  or  left  at  his  house.  I'hat  (Jreatrix  and 
Co.  received  tlie  bill  at  Manchester  on  the  -4th  of  Novendjer, 
between  the  hours  of  eleven  and  twelve  at  no(»n  ;  but  the  pest 
^oes  from  London  to  Manchester  in  three  days.  'Ilu'  bankrupt 
then  resided  at  Manchester;  but  in  general  secreted  himself, 
and  particularly  on  marki-t  days,  after  the  20th  of  NovcndK-r, 
on  w  liicli  day  a  commissinn  «tf  bankrupt  issued  agaiu>.t  him,  and 
he  was  declared  a  bankrupt  at  MaMcliester  under  that  commis- 
sion, in  the  afternoon  of  the  L'4lh  of  Novemln'r,  but  at  what 
hour  did  not  appear;  and  that  connnission  has  since  l)een 
superseded.  Afterwards  another  eoniniission  wius  i.ssued  on 
the  petition  of  (Jreatrix  and  Co. 

The  (piestion  for  the  opinion  of  the  court  is,  whetlu-r  the 
debt,  proved  to  Ix'  due  to  them  under  the  circumstances  alM)ve 
mentioned,  is  sullicienl  to  su[)port  that  commission? 

Ch<imhrt\  for  lln'  plaintifl'  (after  observini^  that  the  oi»jceti(»n 
which  had  been  raised  to  the  petitionint;  creditor's  debt  was, 
that  the  bankiupi  was  to  be  considered  as  discharged  from  the 
bill  for  li<)/,  wbieh  he  had  diawn  in  favoui-  of  the  jtetitioning 
creditor,  no  notice  having  l)een  given  to  the  i)ankrupi  <•!  the 
bills  having  been  dishonoured,)  made  thi-ee  (juestions : 

1st.  That  no  notice  was  necessary  to  l)e  given  to  the  bank- 
rupt in  this  case.  -ndly.  That  even  if  notice  were  necessary, 
il  had  virtually  been  given.  Hrdly.  That  it  was  not  competent 
to  the  defendant  in  this  action  to  make  tlu-  objection. 

As  to  the  first,  notice  must  in  general  be  given  ;  but  most  of 
the  cases  have  arisen  where  the  holder  has  given  indulgence 
to  the  acceptor,  by  whiili  he  is  co.nsidered  as  having  made  his 
election,  to  look  to  the  acceptor  oidy  for  payment.  The  reason 
on  which  the  rule,  reciuiring  notice  to  be  given  to  the  drawer, 
is  founded,  is  on  a  supposition  that  he  may  have  effects  in  the 
hands  of  the  drawee,  and  that  he  ought  to  have  an  opportunity 
of  recovering  satisfaction  from  him ;  and  a  presumption  arises 
that  the  di'awer  will  suffer  from  the  probable  insolvency  of  the 
drawee,  in  consequence  of  the  holder's  neglecting  to  give  notice. 
But  in  this  case  that  presumption  is  repelled  by  stating  that 
the  bankrupt  was  a  debtor  to  the  drawee ;  therefore  the  lule 
does  not  apply.     By  an  ordinance  of  France  (</),  the  drawer, 

(a)  Postletlnv.  tit.  liills  of  Exchun<i;o.  l(j  and  77  art. 


BICKEUDllvE    V.     BOLLMAN.  1275 

in  order  to  discliarge  himself  from  tiie  piiyment  of  a  bill  on 
account  of  his  not  having  had  notice  of  the  non-acceptance  by 
the  drawee,  nnist  show  that  he  had  effects  in  the  other's  hands 
at  the  time  of  drawing.  The  rule  requiring  notice  to  be  given 
to  the  drawer  was  introduced  for  his  protection,  and  therefore 
ought  not  to  be  abused  so  far  as  to  enable  him  to  do  injustice. 

Secondly.  As  this  case  does  not  fall  within  the  reason  on 
which  the  rule  of  law  is  founded,  the  bankrupt,  not  having  had 
effects  in  the  hands  of  the  drawee  at  the  time  that  the  bill  was 
drawn,  must  be  considered  as  having  had  virtual  notice  that 
the  bill  was  not  honoured.  Supposing,  however,  that  the  rule 
of  law  would  be  inflexible  in  an  action  on  the  bill  itself,  yet 
the  question  here  is  not  altogether  whether  the  drawer  can  be 
resorted  to  on  the  bill,  but  whether  the  circumstances  here 
stated  extinguish  the  preceding  debt.  But  it  has  been  repeat- 
edly held  that  the  mere  drawing  of  a  bill  of  exchange  does  not 
extinguish  the  preceding  debt. 

Thirdly.  The  case  of  Quantock  mid  others  against  England  (a) 
is  decisive.  On  a  question  whether  a  debt  barred  by  the  Statute 
of  Limitations  was  sufficient  to  found  a  commission  of  baid^rupt 
upon.  Lord  Mansfield  said,  "  The  Statute  of  Limitations  does 
not  destroy  the  debt ;  it  only  takes  away  the  remedy.  Here 
the  debtor  himself  has  not  objected;  he  has  submitted  to  the 
commission,  and  been  examined  under  it ;  therefore  the  objec- 
tion does  not  now  lie  in  the  mouth  of  a  third  person ; "  and  he 
said  that  iS^'^m  and  Walling er  (^j)  was  in  point.  Li  this  case 
the  notice  to  be  given  was  for  the  benefit  of  the  bankrupt,  and 
the  slightest  acknowledgment  would  be  considered  as  a  waiver 
of  it. 

Bidler^  J.  The  banki'upt  himself  could  not  waive  it  after  the 
bankruptcy. 

Cliamhre.  But  the  assignees  may  waive  it  for  the  purpose  of 
supporting  the  commission. 

Law^  contra.  The  debt  of  the  petitioning  creditor  being 
reduced  under  100?.  by  the  bankrupt's  drawing  the  bill  in  ques- 
tion, is  as  much  discharged  by  the  laches  of  the  holder  in  not 
giving  notice  of  the  non-acceptance  of  the  drawee,  as  by  actual 
payment.  And  as  to  the  assignees  waiving  this  ol^jection,  it  is 
no  answer  in  the  present  action.    For  in  all  cases  where  actions 

(«)  5  Burr.  2G28.     2  Black  Rep.  702,  S.C.  "  (&)  2  Stra.  74G. 


1276  jucKKitinKi-:   v.   hullman. 

iut'  biou^lil  1)}  ilif  a^.^iyiHo  of  a  l)iinknii)t,  they  inu.->i  iiuik«; 
out  a  clear  title,  which  ihcy  cannot  do  without  provinj^  a  legal 
tlcht  of  the  pcliliouinj^  creditor;  and  they  cannt»t  by  their  own 
act  make  that  a  good  del)t  which  would  not  he  so  otherwise. 

As  to  notice  not  having  heen  necessary  because  the  tirawer 
liad  IK)  effects  in  the  drawee's  hands,  that  goes  to  measuring 
the  inconvenience  which  would  result  in  every  particular  case 
fiom  not  giving  notice.  Hut  the  court  l.ave  always  said  that, 
whether  any  actual  change  of  circumstances  has  or  has  not 
taken  place,  or  whetlu'r  the  drawer  may  or  may  not  have  suf- 
fered from  the  negligence  of  the  holder  in  not  having  given 
notice  in  due  time,  it  is  a  strict  rule  of  law,  introduced  for  the 
sake  of  certainty,  and  that  the  drawer  may  have  an  oppnrlunity 
of  resorting  to  the  drawee.  In  the  case  of  Pcarh  and  ]i\ir- 
gens  (^a),  \\\\vY<'  a  (juestion  arose  upon  the  necessity  of  notice 
heiuL'  Lfiven  tn  the  drawer,  it  was  lontcnilcd  that  no  chanire  of 
tarcumstances  had  taken  place,  ov  prohahle  inconvenience  had 
ensued,  from  want  of  notice;  hut  Loril  Manstield  said,  it  was  a 
strict  ride  of  law  that  notice  should  he  given,  and  it  must  be 
adhered  to  in  ivery  case.  This  ease  does  not  come  within  the 
rules  laid  down  in  the  cases  of  Timhtl  and  Brown,  or  Medcalf 
and  Hull  (h),  as  to  what  shall  be  deemed  sulVicient  notice  of 
non-payment  or  non-acceptance;  because  here  there  was  no 
notice  at  all.  It  was  said  by  Lee,  in  arguing  the  case  of  Riissi-ll 
and  Lan;/sf([tJ'  (f^,  and  not  denied  by  the  court,  that  it  had  been 
frcijuently  ruled  l)y  Lord  Manslield  at  (Juildhall,  that  it  is  not 
an  excuse  for  not  demanding  payment  on  a  note  or  bill,  or  for 
not  giving  notice  of  non-payment,  that  the  maker  or  acceptor 
has  become  a  bankrupt,  as  many  ways  may  remain  of  obtaining 
payment  by  the  assistance  of  friends  or  otherwise. 

The  bills  having  been  given  after  the  act  of  bankruptcy,  does 
not  vary  the  present  case  ;  because  a  debt  may  be  discharged 
in  due  course  of  trade,  either  by  payment  of  the  money  after 
a  secret  act  of  bankruptcy,  or  l)y  payment  of  the  bill,  or  by 
dishononring  it. 

With  regard  to  the  debt's  being  extinguished  by  taking  this 
note  from  the  bankrupt ;  by  3  &  4  Anne,  c.  9,  s.  7  ('/),  it  is 
enacted,  that  "  if  any  person  accept  a  bill  of  exchange  for  20/. 

(a)  Sittings  at  Guildhall,  cor.  Lord  (c)  Dougl.  514. 

Manstield.  (d)  [Made  perpetual,  7  Aune,  c.  25, 

(b)  Tr.  22  G.  3.-  s.  3.] 


BICKERDIKE    V.    BOLLMAN.  1277 

or  upwards,  in  satisfaction  of  any  former  debt,  the  same  shall 
be  accounted  a  full  and  complete  payment  of  such  debt,  if  such 
person  accepting  of  any  such  bill  for  his  debt  doth  not  take  his 
due  course  to  obtain  payment  thereof  by  endeavouring  to  get 
the  same  accepted  and  paid,  and  make  his  protest  as  aforesaid, 
either  for  non-acceptance  or  non-payment  thereof."  Here  there 
was  neither  protest  nor  notice,  and  therefore  the  bill  must  be 
considered  as  complete  payment. 

Chamhre^  in  reply,  was  stopped  by  the  court. 

Ashurst,  J.  As  to  the  general  rule,  it  has  never  been  dis- 
puted, that  the  want  of  notice  to  the  drawer,  after  the  dishon- 
our of  a  bill,  is  tantamount  to  payment  by  him.  But  that  rule 
is  not  without  exceptions ;  and  particularly  in  the  case  men- 
tioned by  the  plaintiff's  counsel,  that  notice  is  not  necessary  to 
be  o^iven  where  the  drawer  has  no  effects  in  the  hand  of  the 
di-awee  (a)  ;  for  it  is  a  fraud  in  itself,  and  if  that  can  be  proved, 
the  notice  may  be  dispensed  with.  In  this  case  it  appears  that, 
at  the  time  of  drawing  the  bill,  the  drawer,  so  far  from  having 
any  effects  in  the  hands  of  the  drawee,  was  actually  indebted  to 
him  to  a  large  amount. 

But  even  admitting  this  to  be  a  general  rule  without  any 
exception,  it  was  certainly  introduced  for  the  benefit  of  the 
drawer.  Now  every  rule  may  be  waived  by  the  person  for 
whose  benefit  it  is  introduced.  Under  the  circumstances  of 
the  present  case,  the  di'awer  must  be  considered  as  having 
waived  this  benefit,  because  the  commission  is  founded  on  that 
creditor's  debt,  between  whom  and  the  drawer  this  transaction 
has  happened ;  and  his  submitting  to  it  is  a  waiver  of  the  want 
of  notice,  and  an  admission  of  the  debt ;  which  admission  the 
assignees  have  subsequently  confirmed  by  bringing  this  action. 
Therefore  I  think  that  as  the  bankrupt  himself  has  not  chosen 
to  take  advantage  of  it  by  moving  to  supersede  the  commission, 
it  does  not  now  lie  in  the  mouth  of  a  third  person  to  do  so. 

BuUer,  J.  The  last  point  may  be  laid  entirely  out  of  the 
case,  because,  unless  the  objection  be  well  founded  in  the  case 
of  the  bankrupt  himself,  it  is  immaterial  to  consider  how  far  it 
was  competent  fqr  a  third  person  to  take  advantage  of  it.  The 
case  of  Quantock  and  England  does  not  apply.  There  the 
question  was,  whether  a  third  person  should  be  permitted  to 
avail  himself  of  the   Statute  of  Limitations.     There  might  be 

(«)  Vid.  Galex.  Walsh,  oT.  \l.  2:'.ii. 


lliTH  BICKKUniKK    V.    ItoLLMAS. 

good  reasons  for  disiillowing  it  in  ili.il  tiise,  beciiuse  the  debt 
still  renmint'd  in  lonscieme.  Hut  here  tht-  «jiiestitin  is,  whether 
there  was  a  suiliiient  debt  to  supixut  tlie  eonmiission  iit  the 
time  when  it  issued. 

The  tirst  point  to  be  eonsidered  is,  whether,  under  these  cir- 
cunistanees,  it  was  neeessary  to  give  notiee  within  as  sliort  a 
tinu'  as  could  eunveniently  i»e  done,  that  the  i)ill  was  neither 
aeeeptt'd  nor  paid.  I  am  of  <)[)inion  that  no  sueh  iiotire 
was  nccfssarv.  <  )n  tlu-  sccctnd  trial  of  the  cause  i»f  Timlal  amd 
Jiro/vn  before  nie  at  (iuihlhall,  the  jury  told  me  tln^y  found 
their  verdict  for  tli*-  plaiiitilT  on  the  i^iound  that  it  had  not 
appeared  from  the  evidence  that  any  injury  had  arisen  to  the 
j)arty  from  want  of  notice.  In  eonsecjuence  of  which,  upon  the 
subsecpUMit  trial,  I  told  the  jury  that  where  a  bill  was  aeceptetl, 
it  was  y>r///j^ /«'•/#•  e  vide  nee  that  there  were  effects  of  the  drawi-r 
in  the  hands  (jf  the  acceptor.  The  mistake  of  the  jury  on  the 
former  (n-casion  had  arisen  from  their  taking  it  ft>r  granted  that 
the  drawer  had  not  been  injnied  by  the  want  of  notice.  l>ecause 
he  had  not  proved  it,  whereas  that  j)roof  lay  on  the  plaintitT  to 
produce.  And  u[)on  my  mentioning  this  matter  to  the  court, 
they  thought  that  if  there  were  no  effects  in  the  hands  of  the 
accefitor,  that  would  vary  the  (piestion  veiy  nnich,  as  the 
drawer  could  not  be  hurt. 

The  law  require)!  notice  to  he  [liven,  for  this  rruxon,  fiirmixe  if  ix 
premnu'd  that  the  hill  is  drawn  on  arrount  of  the  ilrawee'x  havinif 
effects  of  the  drawer  in  his  hands  ;  and  if  the  latter  has  notice  that 
the  hill  is  not  accepted^  or  not  paid^  he  mai/  withdraw  them  imme- 
diateli/.  But  if  he  has  no  effects  in  the  other  8  hands^  thm  hr  can- 
not he  injured  for  want  of  notice  (a).  Soon  after  I  sat  on  this 
bench.  I  trieil  a  cause  at  (Tuildhall,  on  a  bill  of  exchange  which 
was  cither  drawn  or  accepted  by  a  person  residing  in  Holland, 
and  a  full  s[)ei'ial  jury,  under  my  direction,  found  a  verdict  for 
the  plaintiff,  notwithstanding  no  notice  had  been  given  to  the 
drawer  of  the  bill's  having  been  dishonoured,  because  he  had  no 
effects  in  the  hands  of  the  person  on  whom  the  bill  was  drawn. 
The  verdict  never  was  objected  to ;  and  if  it  be  proved  on  the 
part  of  the  plaintiff  that  from  the  time  the  bill  was  drawn  till 
the  time  it  became  due,  the  tlrawer  [drawee]  never  had  any 
effects  of  the  draw^ee  [drawer]  in  liis  hands,  I  think  notice  to 
the  drawer  is  not  necessary  :  for  he  must  know  whether  he  had 

(a)  See  Fitzgerald  v.  Williams,  (i  Bing.  N.  C.  G9. 


BICKERDIKE    V.    BOLLMAX.  1279 

effects  in  the  hands  of  the  drawee  or  not ;  and,  if  lie  liad  none, 
he  had  no  right  to  draw  upon  him,  and  to  expect  payment  from 
liim;  nor  can  he  be  injured  by  the  non-payment  of  the  bill,  or 
the  want  of  notice  that  it  has  been  dishonoured.  On  these 
grounds  I  think  the  petitioning  creditor's  debt  was  sufficient  to 
support  the  commission. 

Besides,  in  the  present  case,  as  the  plaintiff's  counsel  have 
truly  argued,  the  question  is  not,  whether  an  action  could  be 
maintained  on  the  bill  itself,  but  whether  the  want  of  notice 
extinguishes  the  debt.  As  to  which  the  case  is  this.  A.  not 
having  any  effects  in  C'.'s  hands,  draws  a  bill  of  exchange  for 
100?.  on  him,  in  favour  of  B.,  for  value  received.  Now  if  0. 
does  not  accept,  and  B.  does  not  give  notice  to  A.,  there  is  an 
end  of  the  bill.  Then  how  does  the  case  stand  ?  A.  has  1001. 
of  B.^s  in  his  hands,  without  any  consideration,  which  therefore 
B.  may  undoubtedly  recover  in  an  action  for  money  he  had 
and  received. 

Per  Curiam. 

Let  the  Postea  be  delivered  to  the  plaintiffs. 


[Though  the  law  as  to  notice  of  dishonour  is  now  codified  by  the  Bills  of 
Exchange  Act,  1882  (45  &  46  Vict.  c.  61),  nevertheless,  as  there  have  been 
few  cases  decided  upon  its  construction,  it  has  been  thought  desirable  to 
retain  the  folloAving  note,  which  deals  with  the  state  of  the  law  at  the  time 
when  it  came  into  operation.] 

In  Goodall  v.  DoUey,  1  T.  E.  712,  in  which  case  the  action  was  brought 
against  the  payee,  Buller,  J.,  intimated  that,  had  the  action  been  against  the 
drawer,  the  case  would  have  been  governed  by  Bickardike  v.  Bollman.  And 
in  Rogers  v.  Stephens,  2  T.  R.  713,  the  decision  was  partly  founded  on  Bicker- 
dike  V.  Bollman,  which  Grose,  J.,  said  had  been  well  considered;  and  in  Legye 
V.  Thorpe,  12  East,  171,  an  action  was  brought  by  the  indorsee  against  the 
drawer  of  a  foreign  bill  drawn  on  one  Wyatt;  the  declaration  negatived 
effects  in  the  hands  of  the  drawee  or  any  consideration  for  the  bill.  It 
appeared  at  the  trial  that  the  defendant  had  no  effects  in  Wyatt's  hands,  and 
that  the  latter  had  therefore  refused  to  accept,  but  that  Wyatt  was  one  of 
the  executors  of  a  person  called  Weeks,  and  that  Weeks'  executors  had 
desired  the  defendant  to  employ  the  payee  of  this  bill  to  do  some  work  on 
AYeeks'  property;  and  the  defendant  therefore  drew  this  bill  on  Wyatt 
to  settle  with  the  payee.  Wyatt  denied  that  he  had  assets  to  pay  the  bill. 
The  only  question  was,  whether  a  protest  of  non-acceptance  was  necessary;  . 
Lord  Ellenborough  thought  not,  and  the  plaintiff  had  a  verdict;  and  on  a 
motion  for  a  new  trial,  tlie  whole  court  thought  the  case  governed  by  Bicker- 
dike  V.  Bollman,  and  discharged  the  rule. 


12H0  UICIvKl:l)IKK     V.     IIOLLMAN. 

Clariilfje  v.  DaWni,  4  M.  Ji  S.  22ti,  In  another  .struu;;  i-.\ciit]iUlU-atlon  of  lhl.>i 
doctrine.  Tbure  tlu*  drawer  of  a  bill  hail  no  effeetM  In  the  hands  of  the 
drawee,  but  had  supplied  him  with  {{oods  upon  a  credit,  which  would  not, 
however,  expire  till  lontf  after  the  hill  would  be«-«)n>e.  line.  Me  wa.s  held  not 
to  be  entitled  to  notice  of  Its  dishonour.  ••  The  ca.se  «>f  liirkfriiike  v.  Hull- 
man"  said  Mr.  J.  Bayley,  "  has  estal)iislu'(i,  and  I  am  disposed  to  think, 
ri;:jlitly,  tliat  a  jiarty  who  cannot  !)e  jirejiidiced  l)y  a  want  of  notice,  shall  not 
be  entitled  to  require  it." 

In  analoj^y  to  the  rule  wITkIi  dispensed  with  noticf  in  sucli  cases  as  tlu- 
above,  It  ha.s  been  held,  tliat  It  is  unnecessary  as  against  the  tirawer  to 
jtrrsent  such  a  bill  on  the  day  of  Its  becondng  due.  Terry  v.  I'tirkfr,  «»  A.  &  K. 
r.02.     [  ]yirth  V.  Ait^^tfH,  L.  H.  10  C.  V.  i)A\).] 

Hut  even  In  the  very  cases  in  widch  Itirkinlikf  v.  liollinnn  has  l)een  acted 
upon,  it  has  l)een  ileclared,  that  the  rule  estai)llshe»l  in  that  ca.se  nuist  not  be 
extended.  In  Clitruhjv  v.  D'tltnn,  Mr.  .lustici-  I,e  Hlanc  went  so  far  as  to 
reiiret  that  any  such  decision  hail  ever  talien  place,  and  see  the  Jud};ment 
di'livered  liy  Harou  I'arlvc  in  Curti'r  v.  Flmrrr,  16  M.  &  W.  74;J  [and  the 
jud^rment  of  Lord  (•ainpl)ell,  C.  .1.,  In  h'lfranl  v.  \V>il»nii.  1  K.  &  H.  H04 ; 
Tttrni-r  v.  Smnaoti,  2  Q.  B.  I).  2:1,  per  Brett.  L.  J.] 

Accordingly  it  was  .settled  that  the  dniwer  Is  entitled  to  n<»lice,  tlioU};h  he 
had  no  effects  in  tlie  tirawee's  hands  when  the  bill  was  drawn  or  became  due, 
If  he  had  eU'ects  on  tlieir  way  to  the  drawee,  liiirktr  v.  Ililler,  '.\  ("amp.  217; 
K;  East,  4:5.  So  it  was  laid  down  by  Lord  Khion  In  a  ca.se  of  l)ankniptcy, 
that,  "  if  a  l)iil  were  accepted  /»»r  thf  nrrinninnilatinn  >,/  the  ilrntrtr,  ami  there 
were  nothing  l»ut  that  l)etween  tlietn,  notice  wouhl  not  be  necessary,  the 
drawer  l)eing,  as  l)etween  him  and  tlie  acceptor,  llrst  liable:  but  if  l)ills  were 
tirawn  for  the  arcinninntliitinn  »>/  th<-  nmptor,  the  transaction  i)eing  for  his 
benefit,  tliere  must  l)e  notice  without  effects;  and  if.  In  the  result  of  various 
dealings,  the  surplus  of  accommodation  is  on  his  side,  he  Is,  with  regard  to 
the  drawer.  In  the  situation  of  an  acceptor  having  ettects,  and  the  failure 
to  give  notice  may  lu'  equally  detrimental."  /•>;<.  Ifr<i(/i,  2  Ves.  &  Bca.  2iO; 
2  Rose.  141. 

\m\  this  rule,  thus  laid  down  I)}'  Loril  Lldon.  exti-nded  to  cases  where  the 
drawer  IkuI  reason  to  expect  that  some  third  party  woulil  provide  for 
tlic  payment  of  the  l)ill;  thus  in  Cnri'i/  v.  Sri>l(,  ;$  B.  &  A.  CA'.K  wIhtc  the  bill 
was  drawn  and  accepted  for  the  accommodation  of  the  first  indorsee,  the 
drawer  was  held  to  be  entitled  to  notice;  and  the  same  point  was  decided 
in  Xorton  v.  rickerinf/,  8  B.  vt  C  (">10.  And  the  sanie  rule  prevailed  though 
the  persoo  expected  to  provide  funds  was  not  a  party  to  the  bill,  Lajitte  v. 
Slatter,  6  Bing.  (523. 

If  the  drawer  had  funds  in  tlie  drawee's  hands  suflicitnt  to  meet  the  bill, 
even  in  part,  though  not  wholly,  he  was  entitled  to  notice,  Thnrkeray  v. 
Blacken,  9  Camp.  KU.  [But  sec  Carew  v.  Durkir„rth,  L.  R.  4  Ex.  313.]  If 
the  drawer  had  made  a  provision  to  have  funils  in  the  ilrawee's  hands  to  meet 
the  bill,  he  had  a  right  to  notice,  though  the  funds  might  not  have  actually 
arrived  there,  liobins  v.  Gibson,  3  Canjp.  334.  And  if  the  drawer  had  eft'ects 
at  the  time  when  the  bill  was  drawn,  he  did  not  lose  his  right  to  notice, 
although  before  the  time  of  payment  he  might  have  ceased  to  have  any,  Orr 
V.  Magcnnis,  7  East,  359,  or  was  intlcbtcd  to  the  drawee  in  a  larger  sum, 
Blackhan  v.  Daren,  2  Camp.  503. 

These  ai'e  strong  cases,  especially  Orr  v.  Maijennis,  for  there  the  drawer 
could,  at  the  time  wlieu  it  fell  ilue.  have  had  no  reasonable  expectation  that 


BICKEllDIKE    V.    BOLLMAN.  1281 

the  bill  would  be  paid,  and  could  have  sustained  no  prejudice  from  the  want 
of  notice;  so  that  that  case  may  be  considered  as  going  the  length  of 
deciding  that  if,  at  anj^  time  after  the  bill  was  issued,  the  drawer  could  have 
reasonably  expected  that  it  would  be  paid,  he  had  a  right  to  notice.  Thus  in 
Hammond  v.  Dufrenc,  3  Camp.  Uo,  it  was  held  unnecessary  that  the  effects 
should  be  in  the  drawee's  hands  when  the  bill  was  drawn,  if  they  were  there 
before  it  became  due,  [and  see  Carew  v.  Duckvjorth,  L.  R.  4  Ex.  313.] 

Although  it  was  said  by  Mr.  J.  Bayley.  in  Glaridge  v.  Dalton,  as  above 
stated,  "  that  a  party  who  cannot  be  prejudiced  by  want  of  notice,  shall  not 
be  entitled  to  require  it,"  still  the  application  of  this  dictum  must  be  confined 
to  the  particular  description  of  case  then  before  the  court ;  for  we  have  seen 
that  it  does  not  extend  to  such  a  case  as  Orr  v.  MrKjfnnis.  So,  too,  it  is 
difficult  to  conceive  how  the  drawer  could  be  prejudiced  by  want  of  notice, 
where  the  drawee  had  become  bankrupt  or  notoriously  insolvent.  Yet  in 
both  those  cases,  he  was  unquestionably  entitled  to  it.  See  Bussell  v.  Lang- 
staffe,  Dougl.  514,  referred  to  in  the  text;  Esdaile  v.  Sowerhy,  11  East,  114; 
and  in  Dennis  v.  Morrice,  3  Esp.  158,  Lord  Kenyon  refused  evidence  tendered 
for  the  purpose  of  showing  that  the  drawer  was  not  prejudiced  by  want  of 
notice.  In  fact,  to  use  the  words  of  the  Lord  C.  J.  Tindal  and  Mr.  J.  Bosan- 
quet,  in  Lafitte  v.  Slatter,  6  Bing.  627,  "  Bickerdike  v.  Bullman  is  an  excepted 
case,  the  principle  of  which  is  not  to  be  extended."  See  also  Caunt  v. 
Thompson,  7  C.  B.  409,  where  it  was  said  by  Cresswell,  J.,  delivering  the 
judgment  of  the  court,  "  It  may  be  assumed  to  be  a  settled  rule  that  knowl- 
edge of  the  probalnlity,  however  strong,  that  a  bill  of  exchange  will  be 
dishonoured,  cannot  operate  as  a  notice  of  dishonour,  or  dispense  with  it, 
...  so  also  it  may  be  considered  as  settled  that  information  that  a  bill 
has  been  dishonoured,  derived  from  a  person  not  having  authority  to  give  it, 
does  not  supply  the  place  of  notice.  Hence  it  has  become  usual  to  say  that 
knowledge  of  the  dishonour  of  a  bill  is  not  equivalent  to  notice."  It  appears, 
however,  from  the  case  last  cited,  that  where  the  drawer  was  himself  the 
party  to  pay  the  bill  (for  instance  Avhere  he  was  the  executor  of  the  acceptor) 
his  knowledge  that  the  bill  liad  been  presented  to  him,  and  was  unpaid,  was 
equivalent  to  notice. 

[In  re  Leeds  Banking  Co.  Ex  parte  Prange,  L.  R.  1  Eq.  1,  it  was  held  that 
an  indorsement  payable  "  in  need"  at  a  particular  bank,  did  not  render  the 
bank  notified  the  agents  of  the  indorsers  to  receive  notice  of  dishonour,  and 
that  therefore,  although  the  drawer  and  acceptor  had  become  bankrupt  be- 
fore the  bill  became  due,  notice  to  the  bank  was  not  notice  to  the  indorsers, 
nor  could  presentment  for  payment  even  to  the  indorser  himself,  operate  per 
SI'  as  notice  of  dishonour  by  the  acceptor.] 

It  seems,  however,  from  the  expressions  of  the  court  in  the  case  of  Fitz- 
gerald V.  Williams,  G  Bing.  N.  C.  68,  that  in  pleading  the  want  of  notice  [was] 
prima  facie  sufliciently  excused  by  showing  that  there  were  no  funds  in  the 
drawee's  hands ;  and  it  was  decided  there,  that  where  the  declaration  averred 
that  there  were  no  funds  in  the  drawee's  hands,  nor  any  consideration  for  the 
acceptance,  and  that  the  defendant  sustained  no  damage  from  the  w\ant  of 
notice,  it  lay  upon  the  defendant  to  prove  the  damage  if  any  resulted. 

But  the  circumstances  which  would  amount  to  a  sufficient  excuse  for  want 
of  notice  as  against  the  drawer,  did  not  always  excuse  want  of  notice  to  an 
indorser.  Where  an  action  was  brought  by  the  indorsee  of  a  promissory  note 
against  the  indorser,  to  whom  it  had  been  indorsed  by  the  payee,  the  declara- 
tion alleged,  that  neither  at  the  time  the  note  was  made,  nor  afterwards  and 


l:i«:i  BICKKUDIKK    V.     IJMIJ.MAN. 

before  It  became  due,  nor  when  It  became  due  and  on  presentment  for  pay- 
ment, liad  thr  niakcr  or  payee  any  elTects  of  tlie  defemlant  in  hh  lisndM,  nor 
was  there  any  consideration  or  value  fur  tlie  making  of  tlie  note,  of  the  pny- 
nieiit  tliereof,  or  its  indorsement  l)y  the  payee  to  tlie  defendant,  ami  that  the 
defeMdaiit  iiad  not  sustained  any  damage  l)y  reason  of  his  not  ha\in^  had  no- 
tice of  tlie  lion -piiynient  of  the  note;  It  was  held  that  as  against  nn  imltirurr, 
the  declaration  tlid  not  state  a  snillcient  excuse  of  want  of  notice  of  iIIh- 
honour,  as  it  was  cimsiHtent  with  the  avernieiits  in  the  declaration,  that  the 
note  nii:;lit  have  been  indorsed  by  the  defendant  for  the  acconinuHlation  of  a 
prior  party,  in  wliich  case  the  defendant  wonhl  Ih>  entitled  to  notice  of  tlLs- 
hfinour,  f'urdr  v.  Flinnr,  W,  M.  &  W .  743;  [accordinirly  in  Turnt-r  v.  SotnpiiDn, 
•_'  (^  H-  I).  -':»;  4t;  L.  J.  Q.  H.  u;7,  where  as  between  all  the  parties  to  an  ac- 
commodation bill  the  intention  was  lliat  the  last  Indorser  shoidd  pay  it.  it 
was  lield  in  an  action  a:;aiiist  a  prior  indorser  that  he  was  entitled  to  notice 
«d' dishonour;  and  see  F-islir  v.  I'ltikt^r,  2  ('.  1*.  D.  |H;  4»>  L.  .1.  ('.  I*.  77. J 
Wliere  no  notice  had  been  iriven  nt  mnj  timf,  the  excuse  must  have  lu-en  set 
out  on  the  record;  If  It  had  l»een  ^iven.  but  at  a  time  whleh  woidd  be  too  Inte 
in  the  usual  course,  the  matter  of  excuse  nd;;ht  probalily  have  been  used  to 
show  that  It  was,  under  the  circumstances.  In  reasonable  time;  JuiUjmfnt, 
Cnrtfr  v.  t'lmrcr,  iil>i  .iiip.  See  where  the  Indorser  was  hehl  not  to  Ik*  entitled 
ti>  notice,  Ciirutij  v.  MnnlfZ  dn  Cuntu,  1  Ksp.  ,'102,  and,  as  to  what  excuses 
were  sulllcieiit  in  the  analot;ous  case  of  presentment  for  payujcut.  see  Sumln 
v.  ('l>trk\  H  (".  B,  7.'»1.  [linnk  i>f  \'iin  IHrmi-n'n  Land  v.  llttik  i>f  Virtnria,  L. 
K.  •^  V.  (\.Vi<!;  C/firt'i-rd,  i(v.,  ll'tnk  v.  DirkHnu,  \..  U.  :;  I*.  C.  .'.74;  ami  s.  4»i 
of  tlie  recent  statute,  /"».«i/. 

Ill  tlie  earlier  cases,  notices  of  dishonour  were  strictly  ••onstnn-d  by  the 
courts,  and  were  often  held  to  l)c  Insuttlclent  upon  very  technical  ;irounds. 
The  disposition  of  the  courts.  In  the  later  tieclslons,  wa.s  to  construe  these 
notices  more  lil)crally;  and  l)efore  the  Bills  of  Kxchanire  Act,  1SH2,  it  had 
been  estal)lislied  that,  aitliouurli  the  notice  must  intimate  that  the  bill  had 
been  presented  and  dishonoured,  it  was  not  nec«'ssiiry  that  the  person  to  whon> 
it  was  addressed  should  lie  infornu-d.  in  t«'rms.  that  the  holder  looked  to  him 
for  payuu'ut.  See  Fiirzf  v.  S/titriroud,  2  i^.  li.liHH;  S/nltmt  v.  liniit/iiniitf,  7 
M.  &  W.  4:?t; ;  Mi,rii  v.  Rnnrn,  11  M.  &  W.  372;  /intrhntils  v.  Sprnn/i'tt,  14  M. 
&  W.  7;  r/iard  v.  F<>.r.  14  Q.  B.  2(X1;  Mrlbrxh  v.  liippiu,  7  Kxch.  ">78 ;  Met- 
calfe V.  /iichai-d.siin,  11  ('.  B.  1011;  and  Paul  v.  .AW,  4  II.  &  X.  35.');  Viall  v. 
Michael,  Q.  B.  30  L.  T.  433.  Ex  partf  Loicenthal,  L.  U.  9  C.  II.  591.  As  to 
wliat  was  reasonable  diligence  in  giving  notice  of  dishonour,  sec  flladicell  v. 
Turner,  I..  K.  .">  Kx.  .j9  ;  Berridije  v.  Fitzijerald,  L.  U.  4  g.  B.  t;39.  In  re  Leeds 
Biinkinij  Co.,  L.  R.  1  Eq.  1  ;  Prideaux  v.  Criddle,  L.  U.  4  Q.  B.  4.'».'. :  Iletjienod 
V.  Pirkeriiif/,  L.  R.  9  Q.  B.  428;  notice  of  dishonour  to  the  drawer  himself 
ini^lit  1)0  sullicicnt  notwithstanding  that  he  had  been  bankrupt  and  a  trustee 
liad  been  apiJointed.  ex  parte  liaker,  4  Ch.  I).  79.");  4(3  L.  J.  Bkcy.  CO. 

A  subsequent  promise  to  pay  made  Ijy  an  indorser  of  a  bill  who  has  had  no 
notice  of  dishonour,  was  evidence  of  a  waiver  of  the  right  to  notice.  See 
Woods  v.  Dean,  3  B.  &  S.  101 ;   C'ordertj  v.  C'drille,  32  L.  J.  C.  P.  210. 

It  may  here  be  noticed  that  by  some  foreign  laws,  notice  of  dishonour  is 
given  thi'ough  an  offlcial  channel,  and  so  that  the  receipt  of  it  by  an  indorser 
residing  out  of  the  country  may  be  matter  of  courtesy  or  chance.  It  had 
been  held  that  the  drawer  or  indorser  in  England  of  a  bill  directed  to  a  per- 
son residing  in  such  foreign  country,  is  only  entitled  to  the  notice  which  its 
law  prescribes;  a  proposition  which,  though,  perhaps,  not  sustainable  upon 


BICKERDIKE    V.    BOLLMAN.  1283 

the  grounds  on  which  it  was  rested  in  Rothschild  v.  Currie,  1  Q.  B.  43,  will  be 
found,  it  is  submitted,  upon  examination,  to  have  reason  as  well  as  conven- 
ience in  its  favour  (see  Hirsdijield  v.  Smith,  L.  R.  1  C.  P.  340;  35  L.  J.  C.  P. 
177).  It  had  been  afterwards  approved  and  adopted  in  the  Court  of  Appeal 
in  Home  v.  Ronquette,  3  Q.  B.  D.  514,  where,  though  the  court  questioned  the 
reasoning  of  Rothschild  v.  Currie,  they  adopted  the  decision.  Home  v.  Rou- 
quette  indeed  went  one  step  further,  for  the  court  unanimously  regarded  as 
immaterial  the  fact  that  the  bill  there  sued  on  was  a  foreign  bill,  and  held 
that  the  rights  of  an  indorser  in  England  to  notice  of  dishonour  might  be 
modified  by  the  fact  that  the  bill  had  been  subsequentlj'  indorsed  in  a  country 
where  notice  of  dishonour  was  not  necessary.  In  that  case  the  plaintiff  had 
indorsed  the  bill  in  Spain,  where  it  would  seem  that  notice  of  dishonour  by 
non-acceptance  is  not  necessarj^  and  had  himself  consequently  become  liable 
upon  it  although  he  did  not  receive  notice  until  long  after  the  bill  had  been 
dishonoured. 

On  receiving  notice  of  dishonour  he,  however,  immediately  passed  it  on  to 
the  defendant  from  whom  he  had  taken  the  bill  by  indorsement  in  England. 
It  was  held  that  the  defendant  was  liable.  Cotton,  L.  J.,  indeed  pointed  out 
that  the  case  did  not  decide  that  the  plaintiff  who  took  by  indorsement  in 
England  could  have  recovered  against  the  defendant  had  he  delayed  in  pass- 
ing on  the  notice  of  dishonour.  It  is  submitted,  however,  that  as  in  Hirsch- 
field  V.  Smith,  so  in  the  case  supposed,  the  real  question  would  be,  what  was 
reasonable  notice  to  give  under  the  circumstances,  and  as  any  notice  would 
have  ))een  practically  nugatory  after  the  delay  which  had  already  taken  place, 
a  plaintiff's  right  could  hardly  be  defeated  by  any  additional  delay  beyond 
that  which  is  under  ordinary  circumstances  permissible  by  English  law.  See 
further  Roiiquette  v.  Orerman,  L.  R.  10  Q.  B.  525,  and  the  Notes  to  Mostijn  v. 
Fabrigas,  ante.  Vol,  I.  The  same  principle  explains  what  at  first  sight 
appears  anomalous,  viz.,  that  a  person  having  certain  rights  under  a  contract 
made  in  this  country  should  find  those  rights  modified  by  matter  subsequent 
which  has  taken  place  in  a  foreign  country.  For  since  the  right  of  an  in- 
dorser in  England  is  to  receive  reasonable  notice  of  dishonour,  and  since 
any  person  who  indorses  a  negotiable  instrument  must  be  taken  to  know  that 
it  may  circulate  outside  this  country,  reasonable  notice  may  well  be  held  to 
be  such  notice  as  having  regard  to  the  various  places  where  the  bill  has  cir- 
culated it  has  been  possible  for  the  party  suing  to  give.  See  also  per  Wills, 
J.,  Lee  v.  Abdy,  17  Q.  B.  D.  p.  314. 

The  sections  of  the  Bills  of  Exchange  Act,  1882  (45  &  46  Vict.  c.  61), 
which  deal  with  the  subject  of  this  note  are  as  follows :  — 

Sec.  97  enacts  that, 

1.  The  rules  in  bankrivptcy  relating  to  bills  of  exchange,  promissory 

notes,  and  cheques,  shall  continue  to  apply  thereto  notwithstand- 
ing anything  in  this  Act  contained. 

2.  The  rules  of  common  law,  including  the  law  merchant  save  in  so 

far  as  they  are  inconsistent  with  the  express  provisions  of  this  Act 
shall  continue  to  apply  to  bills  of  exchange,  promissory  notes,  and 
cheques. 
Sec.  47,  sub-sec.  2.    Subject  to  the  provisious  of  this  Act  when  a  bill  is  dis- 
honoured   by   non-payment,  an    immediate    right    of    recourse   against   the 
drawers  and  indorsers  accrues  to  the  holder. 

Sec.  48.  Subject  to  the  provisions  of  this  Act,  when  a  bill  has  been  dis- 
honoured by  non-acceptance  or  by  non-payment,  notice  of  dishonour  must  be 


l'2H4  i:ifKi:iti>iKi;   v.    isollman. 

•jivon  to  the  drftwor  ftiul  each  iii(li>rf.t'r,  arid  any  drawi-r  <»r  imiorscr  to  whom 
siicli  iiotict'  is  not  ;;ivt'ii  is  discliari^i-d ; 

Provided  tliut  (1)  Wlierr  a  i)ill  is  dishonourL-d  l»y  n<»n-arc«'|»tanco,  and 
notice  of  dislioniiiir  Is  not  >?lvcn,  the  rlj^jlits  of  a  iioUler  in  ilue  course  subsK!- 
(juent  to  the  omission,  shall  not  be  prejudiced  by  the  omission.  (2)  Where 
a  bill  is  dishonoured  by  non-acceptance,  and  due  notice  of  dishonour  Is  tjiven, 
it  sliall  not  be  necessary  to  <i\\v  notice  of  a  subse<|Uent  dislionour  by  non- 
payment unless  the  bill  shall  in  the  meantime  have  been  accepted. 

Sec.  4'.».  Notice  of  ilisiionour  in  order  to  be  valid  antl  elfectnal  must  be 
given  in  accordance  with  the  following  rules:  — 

1.  The  notice  must  be  givrii  by  or  on  behalf  of  the  holder  or  by  or  on 

behalf  of  an  nulorser,  who,  at  the  time  of  ijivins;  it  is  himself  liable 
on  the  bill. 

2.  Notice  of  dishonour  m;iy  be  i;iv«-n  by  an  a;jent  either  in  his  own  name 

or  in  the  name  of  any  |)arty  eutith-d  to  nivi-  notice,  whether  that 
party  be  his  priuci|>al  or  not. 

3.  Where  the  notice  is  given  by  or  on  behalf  of  tlie  hohler.  it  enures  for 

the  benellt  of  all  siibsecpient  holders  ami  all  prior  indorsers  who 
have  a  right  of  recourse  against  the  party  to  wliom  it  is  given. 

4.  Where  notice  is  given  by  or  on  l)ehalf  of  an  iudorst-r  entitled  to  give 

notice  as  hereinlu-fore  provided,  it  enures  for  the  benefit  of  tlic 
holder  and  all  indorsers  subsequent  to  the  party  to  whom  notice  Is 
given. 

5.  The  notice  may  be  given  In  writing  or  by  personal  ciunmunic.itlitn,  and 

may  be  given  in  any  terms  which  sutlhiently  identify  the   l>ill   and 
intimate  that   the  bill  has  been  dishonouretl    by   non-acceptance  or 
noii-i)ayment. 
G.  The  return  of  a  dishonouretl  bill   to  the  drawer  or  an  indorser  is,  in 
point  of  form,  deemed  a  sullicient  notice  of  dishonour. 

7.  A  written  notice  need  not  be  signed,  and  an  jnsutllcient  written  notice 

may  be  supplemented  and  validated  by  verbal  communication.  A 
misdescription  of  the  bill  shall  not  vitiate  the  notice  unless  the  party 
to  whom  the  notice  is  given  is  in  the  fact  misled  thereby. 

8.  Where  notice  of  dishonour  is  reipiired  to  be  given  to  any  person,  it  may 

be  given  either  to  the  party  himself,  or  to  his  agent  in  that  behalf. 

9.  Where   the  drawer  or  indorser  is  dead   and   the   party  giving  notice 

kuows  it,  the  notice  must  be  given  to  a  persf)nal  representative  if 
such  there  be,  and  with  the  exercise  of  reasonable  diligence  he  can 
be  found. 

10.  Where  the  drawer  or  indorser  is  bankrupt,  notice  nuiy  be  given  either 

to  the  party  himself  or  to  the  trustee. 

11.  Where  there  are  two  or  more  drawers  or  indorsers  who  are  not  part- 

ners, notice  must  be  given  to  each  of  them,  unless  one  of  them  has 
authority  to  receive  such  notice  for  the  others. 

12.  The  notice  may  be  given  as  soon  as  the  bill  is  dishonoured,  and  must 

be  given  Avitliin  a  reasonable  time  thereafter. 

In  the  absence  of  special  circumstances  notice  is  not  deemed  to 
have  been  given  within  a  reasonable  time  unless  :  — 

(a)  Where  the  person  giving  and  the  person  to  receive  notice 
reside  in  the  same  place,  the  notice  is  given  or  sent  off  in 
time  to  reach  the  latter  on  the  day  after  the  dishonour  of 
the  bill. 


BICKEKDIKE    V.    BOLLMAN.  1285 

(6)  Where  the  person  giving  and  the  person  to  receive  notice 
reside  in  dift'erent  places,  the  notice  is  sent  oflT  on  the  day 
after  the  dishonour  of  the  bill,  if  there  be  a  post  at  a  con- 
venient hour  on  that  day,  and  if  there  be  no  such  post  on 
that  day  then  l)y  the  next  post  thereafter. 

13.  Where  a  bill  when  dishonoured  is  in  the  hands  of  an  agent,  he  may 
either  himself  give  notice  to  the  parties  liable  on  the  bill,  or  he  may 
give  notice  to  his  principal.  If  he  give  notice  to  his  principal  he 
must  do  so  within  the  same  time  as  if  he  were  the  holder,  and  the 
principal  .upon  receipt  of  such  notice  has  himself  the  same  time  for 
giving  notice  as  if  the  agent  had  been  an  independent  holder. 

14.  Where  a  party  to  a  bill  receives  due  notice  of  dishonour,  he  has  after 

the  receipt  of  such  notice  the  same  period  of  time  for  giving  no- 
tice to  antecedent  parties  that  the  holder  has  after  the  dishonour. 

15.  Where  a  notice  of  dishonour  is  duly  addressed  and  posted,  the  sender 

is  deemed  to  have  given  due  notice  of  dishonour,  notwithstanding 
any  miscarriage  by  the  post  office. 
Sec.  50.  1.  Delay  in  giving  notice  of  dishonour  is  excused  where  the  delay 
is  caused  by  circumstances  beyond  the  control  of  the  party  giving  notice,  and 
not  imputal)le  to  his  default,  misconduct,  or  negligence.     When  the  cause  of 
delay  ceases  to  operate  the  notice  must  be  given  with  reasonable  diligence. 
2.  Notice  of  dishonour  is  dispensed  with  — 

(a)  When  after  the  exercise  of  reasona1)le  diligence  notice  as  required 
by  this  Act  cannot  be  given  to  or  does  not  reach  the  drawer  or 
iudorser  sought  to  be  charged  : 

(b)  By  waiver  express  or  implied.  Notice  of  dishonour  may  be  waived 
before  the  time  of  giving  notice  has  arrived  or  after  the  omission  to 
give  due  notice : 

(c)  As  regards  the  drawer  in  the  following  cases,  namely,  (1)  where  the 
drawer  and  drawee  are  the  same  person;  (2)  where  the  drawee  is 
a  fictitious  person,  or  a  person  not  having  capacity  to  contract; 
(3)  where  the  drawer  is  the  person  to  whom  the  bill  is  presented 
for  payment ;  (-1)  where  the  drawee  or  acceptor  is  as  between  him- 
self and  the  drawer  under  no  obligation  to  accept  or  pay  the  bill ; 
(5)  where  the  drawer  has  countermanded  payment : 

(d)  As  regards  the  iudorser  in  the  following  cases,  namely,  (1)  where  the 
drawee  is  a  fictitious  person  or  a  person  not  having  capacity  to  con- 
tract, and  the  indorser  was  aware  of  the  fact  at  the  time  he  indorsed 
the  bill;  (2)  where  the  indorser  is  the  person  to  whom  the  bill  is 
presented  for  payment ;  (3)  where  the  bill  was  accepted  or  made  for 
his  accommodation. 

Sec.  72.  Where  a  bill  drawn  in  one  country  is  negotiated,  accepted,  or  pay- 
able in  another,  the  rights  and  duties,  and  liabilities  of  the  parties  thereto  are 
determined  as  follows  :  — 

1.  The  validity  of  a  bill  as  regards  requisites  in  form  is  determined  by 
the  law  of  the  place  of  issue,  and  the  validity  as  regards  requisites 
in  form  of  the  supervening  contracts,  such  as  acceptance,  or 
indorsement,  or  acceptance  supra  protest  is  determined  by  the  law 
of  the  place  where  such  contract  was  made. 
Provided  that  — 

(6)  Where  a  bill  issued  out  of  the  United  Kingdom  conforms 
as  regards  requisites  in  form,  to  the  law  of  the  United 


ll*8G  mCKKUDIKK    V.     m»LL.MAN. 

Kiiinil'iiti,  it  may,  for  tlu*  puri>o-,«'  of  t-nfort-luK  payment 
lIuTi-of,  Ik>   tn-utfil  a.s  vullil  as  Im-Iwitij  all  p«T>uiis  wlio 
iifi;<)tiatf,   lioUl,  or   hocomt-    parties    to    it    In   tliu    I'nltctl 
Kinyiloni.      (Sff  lif  M'lrnfUl'-s  d'r.  Co.,  M  Ch.    I).   5'JM ;   66 
L.  J.  I'll,   in;,  aca.se  ileclilf«l  upon  bills  drawn  In-forf  tin- 
statute.) 
2.  Subject  to  the  provisions  of  this  Act,  the  Interpretation  of  the  tlratv- 
In;;,  Intlorsement,  acceptance,  or  acceptance  »>n>rn  protest  of  a  hill, 
is  tielermlneii  by  the  law  of  the  place  where  such  contract  Is  moile. 
Provided    that   where   an    inland    l>ill    is    indorsed    in   a   foreign 
country,  the  indorsement  shall,  as  regards  the  payer  be  interpreteil 
accoriliiii;  to  the  law  of  the  I'nlted  Klni;doni 
;J.  The  duties  of  the  liuUler  w  ith  respect  to  presentment  for  accceptance 
or  payment,  and  the  necessity  for  or  sullh-lency  of  a  protest  or 
notice  (»f  illshonour,  or  otherwise,  are  detennined  by  the  law  of 
the  ploce  where  the  act  Is  done,  or  the  bill  Is  dlshonoureil. 
5.  Where  a  bill  Is  drawn  In  one  country  and  Is  payable  In  another,  the 
due  dale  thereof  Is  detemdned  according  to  the  law  of  the  place 
where  it  Is  payable.] 


Omu  ot  the  ino.st  t'liMily  .scttltMl  rules  of  all  the  law,  i.s  that 
lU'itlior  the  drawer  nor  the  in(lors«'r  of  a  hill  of  exrhaiipe  .shall 
lu'  liahle  thereon  unless  the  holder  shall  at  the  proper  time  pre- 
sent the  same  foi-  aeeeptanee  or  payment,  and,  in  ease  of  refusal, 
shall  at  once  i^ive  to  the  drawer  and  indurser  notice  of  .such 
dishonor,  i»r  at  least  use  rcasoiiahlc  diliLjenee  to  ilu  so.  'I'his 
has  loner  j)ei>n  the  recoLTni/.cd  law  in  ICn^land  and  it  has  In'en 
fully  accc|)te(l  in  the  I'nitcd  States:  Muck  >\  Cotton,  2  Conn, 
lii*!;  liciry  ''.  l{ol)ins(»n,  *•  .Johns.  IJl  ;  Mi  Kinney  v.  Crawford, 
8  S.  cV  K.  :{.')1,  :\'u.  Tlu"  contract  of  the  drawer  or  indorser  is 
only  to  be  secondarily  liable,  and  their  responsibility  is  in)t 
absolute  but  conditional  on  their  receiving  due  notice  of  the 
dishonor.  The  apparent  exception.s  to  the  rule  are  simply  the 
ones  which  prove  it.  They  can  all  Ikj  easily  distinguished  and 
a  good  reason  is  found  for  their  existence  ;  this  reason  is  one 
wliich  in  the  law  always  creates  an  exception  to  general  rules, 
viz.,  fraud.  In  some  form  or  other,  the  element  of  fraud  is 
foinid  in  all  cases  where  the  stringency  of  the  general  rule 
seems  to  have  been  relaxed. 

Many  modifications  of  the  general  rule,  laid  down  in  this 
leading  English  case,  have  been  made  in  this  country,  and 
many  refinements  have  been  gone  into,  but  in  the  end  we  come 
back  to  the  first  proposition,  viz.,  that  fraud  in  some  form  or 


BICKERDIKE    V.    BOLLMAN.  1287 

other  must  be  present  to  permit  a  departure  from  the  strict 
rule. 

It  may  safely  be  said  that  the  drawer  and  indorser  must 
always  have  notice  before  any  liability  on  their  part  arises ; 
they  must  have  notice  that  the  bill  has  not  been  accepted  or 
paid  at  maturity.  Notice  is  imperative,  and  in  all  cases  except 
where  fraud  intervenes,  the  payee  must  make  reasonably  active 
efforts  to  advise  the  one  secondarily  liable  so  that  he  can  take 
such  steps  as  may  be  necessary  for  his  own  protection ;  but 
where  fraud  does  intervene,  the  fraud  is  itself  notice.  If  the 
Ijill  is  drawn  with  a  full  consciousness  on  the  part  of  the  drawer 
that  there  are  no  funds  in  the  hands  of  the  drawee,  the  drawer 
must  know  that  he  has  no  reason  to  expect  anything  except 
dishonor,  and  from  the  very  moment  of  drawing  the  bill  he  has 
the  fullest  possible  notice  of  the  dishonor.  Chief  Justice  ]Mar- 
shall  extends  the  doctrine  beyond  the  narrow  limits  of  the 
English  case  by  saying  that  although  no  funds  were  actually  in 
the  hands  of  the  drawee  when  the  draft  was  made,  yet,  if  by 
previous  arrangement  the  drawer  had  good  reason  to  expect 
that  funds  Avould  be  provided  to  meet  the  bill,  he  would  be  free 
from  the  charge  of  fraud,  and  would  be  entitled  to  the  custom- 
ary notice  ;  French  v.  Bank  of  Columbia,  4  Cr.  141.  For 
cases  establishing  fraud  as  the  distinguishing  mark,  see  Stanton 
V.  Blossom,  14  Mass.  116  ;  Grosvenor  v.  Stone,  8  Pick.  79 ;  Kins- 
ley V.  Robinson,  21  Id.  327 ;  DoUfus  v.  Frosch,  1  Denio  367 ; 
Van  Wart  v.  Smith,  1  Wend.  219,  227 ;  Robinson  v.  Ames,  20 
Johns.  146,  150 ;  Hoffman  v.  Smith,  1  Cai.  157 ;  Mobley  v. 
Clark,  28  Barb.  390 ;  Cathell  v.  Goodwin,  1  Harr.  &  Gill  468 ; 
Hill  V.  Norris,  2  Stew  &  P.  114 ;  Yongue  v.  Ruff,  3  Strob.  311, 
313 ;  Bloodgood  v.  Hawthorn,  14  La.  124 ;  Oliver  v.  Bank,  11 
Humph.  74;  Wollenweber  v.  Ketterlinus,  17  Pa.  St.  399;  Hop- 
kirk  V.  Page,  2  Brock.  20 ;  Dickins  v.  Beale,  10  Peters  572 ; 
Brower  v.  Rupert,  24  111.  182 ;  Howes  v.  Austin,  35  Id.  396 ; 
Wood  V.  Price,  46  Id.  435 ;  Welch  v.  B.  C.  Manuf.  Co.,  82  Id. 
579. 

If  he  had  no  funds  at  time  of  drawing,  and  he  knew  that 
fact,  he  is  not  entitled  to  notice.  See  Ford  v.  McClung,  5  W. 
Va.  156 ;  Spear  v.  Atkinson,  1  Ired.  262 ;  Denny  v.  Palmer,  5 
Id.  610 ;  Cedar  Falls  v.  Wallace,  83  N.  C.  225 ;  Dunbar  v. 
Tyler,  44  Miss.  1 ;  Richie  v.  McCoy,  13  Sm.  &  Mar.  541 ;  Mehl- 
berg  V.  Tisher,  24  Wis.  607 ;  Pitts  v.  Jones,  9  Fla.  519 ;  Shaffer 


\'2HS  IJICKKUDIKK    V.    I«)LL.MAN. 

V.  Miuldox,  9  Neb.  20.');  Aimemliaz  v.  Senia,  40  Tex.  202; 
McRae  r.  Rhodes,  22  Ark.  31;');  Sullivan  r.  Deadinaii,  2:{  Id. 
14;  Rank  v.  Easlev,  44  Mo.  280;  Mislt  r.  Trovingcr,  7  Ohio 
St.  2S1. 

At  first  siglit  it  seems  ;is  thon<,di  fraud  must  he  presumed 
from  tlu"  fai't  of  drawing  against  *•  no  funds  "  and  sonit*  case.s 
have  gone  on  that  theory;  Fotheringham  v.  Rrico,  1  Ray  2'.tl  ; 
Rakc-r  /-.  (;allaght'r,  1  Wash.  V.  ('.  401  ;  Read  r.  Wilkinson,  2 
Id.  r)14;  Diikins  r.  Real,  lO  l*eter.s  .'u'l.  Rut  sonuthing  more 
is  really  nee<led :  there  must  be  circumstanees  or  an  absenee  of 
eireumstanees  which  shall  elearly  indicate  fraud  on  the  part  of 
tlie  drawer  before  he  can  be  charged  with  notice  and  dcjirived 
ol  his  customary  i»rivilege;  ("luger  >'.  Armstrong,  ;>  Johns. 
Cas.  ') :  I'^ranklin  /•.  \'anderi>«>til,  1  JLill  ~H.  See  further: 
Curry  c.  Ileilong,  11  La.  An.  Ool:  Anderson  v.  Folger,  11  Id. 
20'.>;  (loiladay  r.  Rank,  2  Head  •>!  ;  Miser  <'.  Trovinger,  7  ( )hio 
St.  2S1  ;    Wo.mI  r.  .M( M.ans,  2:^  Tex.  4H4. 

Tli;it  the  holder  may  avail  himsidf  of  the  exception  to  the 
rule  he  must  show  allirmatively  that  there  were  no  finnls 
when  the  bill  was  ilrawn,  and  have  been  none  up  to  the  time  of 
maturity;  (iolladay  v.  Rank,  2  Head  .")7  ;  and  to  show  this  lie 
must  have  more  than  simply  a  statement  by  drawee  that  the 
bill  ought  not  to  have  been  drawn,  for  in  such  case  the  drawee  is 
not  the  agent  of  the  drawer;  Carh'  r.  White,  9  Greenl.  104.  In 
case  the  bill  has  been  accepted,  and  then  not  paid  at  maturity, 
the  burden  is  strongly  on  the  holder  to  show  "no  fumls,"  for 
presumably  the  drawer  rightfully  expected  funds ;  Richie  v. 
McCoy,  13  Sm.  &  Mar.  541;  Ihnibar  v.  Tyler,  44  Miss.  1. 
Strictly  the  exception  is  confined  to  bills  of  change  not  accepted  ; 
in  the  case  of  notes  we  may  have  an  analogous  case,  where  a 
payee,  knowing  that  there  was  no  conmleration  for  tlie  note, 
indorses  it  over,  in  such  case  the  indorser  will  not  be  entitled 
to  notice ;  Gee  v.  Williamson,  1  Porter,  Ala.  313.  Rut  usually 
it  does  not  apply  to  a  bill  of  exchange  accepted,  nor  to  a  prom- 
issory note,  —  if  the  maker  of  a  promissory  note  be  insolvent 
the  bolder  must  still  give  notice  to  the  indorser ;  Pons's  Exec. 
V.  Kelly,  2  Hay.  (N.  C.)  45.  In  all  the  cases  where  notice  has 
been  dispensed  with  we  shall  find  the  true  reason  to  be  fraud 
in  one  form  or  another.  It  is  not  absolutely  necessary  to  con- 
stitute a  fraud  that  the  bill  be  drawn  against  "  no  funds.""  It  is 
suflficient  if  through  any  fraudulent  act  of  the  drawer  the  bill 


BICKEEDIKE    V.    BOLLMAN.  1289 

is  presented  against  no  funds.  At  the  time  of  drawing  the 
bill  the  funds  may  be  in  the  hands  of  the  drawee  or  reasonably 
on  their  way  there,  and  at  that  moment  the  draAver  may  have 
no  fraudulent  intent  whatever,  but  if  he  does  any  act  in  the 
interval  before  presentment,  by  which  the  funds  are  prevented 
from  meeting  the  obligation,  he  is  at  that  very  moment  charged 
with  notice,  for  he  must  know  of  the  certain  dishonor  which 
awaits  the  bill ;  Valk  v.  Simmons,  4  Mas.  113 ;  Eichelberger  v. 
Finley,  7  Harr.  &  J.  381 ;  Harker  v.  Anderson,  21  Wend.  372 ; 
Sutcliffe  V.  McDowell,  2  Nott  &  McC.  251 ;  Lilley  v.  Miller,  Id. 
257.  Where  the  check  or  draft  is  drawn  against  funds  in  good 
faith,  and  later,  through  the  carelessness  or  mistake  of  the 
drawer,  they  are  withdrawn  or  applied  to  other  uses,  the  cases 
seem  to  hold  that  if  the  drawer  acted  in  good  faith  he  is  en- 
titled to  notice.  It  would  seem  hard  to  accuse  him  of  fraud  in 
such  a  case,  but  it  would  seem  that  another  principle  should 
apply  and  one  more  exception  be  grafted  on  the  law,  for  where 
one  of  two  equally  innocent  persons  must  suffer,  the  loss  should 
fall  on  the  one  who  made  the  mistake ;  but  the  cases  do  not  go 
so  far.  It  must  appear,  it  seems,  that  the  cbawer  hnew  that 
there  would  l)e  no  effects  in  order  that  notice  to  him  may  be 
dispensed  with ;  Edwards  v.  Moses,  2  Nott  &  McC.  433 ;  Orear 
V.  McDonald,  9  Gill  350.  Another  exception  to  the  general 
rule  is  where  accommodation  paper  is  involved  ;  this,  like  fraud, 
always  creates  an  exception.  It  is  drawn  for  the  benefit  of 
the  drawer,  and  he  agrees  to  take  it  up.  He  is  in  this  case 
primarily  and  not  secondarily  liable,  and  he  has  no  claim  to 
notice  ;  he  is  required  to  see  that  it  is  paid  when  due,  and  must 
know  of  any  default.  This  doctrine  is  supported  by  the  follow- 
ing decisions :  Hoffman  v.  Smith,  1  Cai.  157  ;  Reid  v.  Morrison, 
2  W.  &  S.  401 ;  Evans  v.  Norris,  1  Ala.  511 ;  and  by  dicta  in 
the  following  cases :  French  v.  Bank,  4  Cra.  160 ;  Agan  v. 
M'Manus,  11  Johns.  180;  Holland  v.  Turner,  10  Conn.  308. 
So,  too,  in  case  of  a  draft  indorsed  for  accommodation  of  drawer, 
with  the  knowledge  of  the  indorser,  where  there  was  no  ex- 
pectation that  the  bill  would  be  paid  by  the  drawee,  the  in- 
dorser is  not  entitled  to  notice ;  Farmers'  Bank  v.  Vanmeter, 
4  Rand.  553.  Nor  is  an  indorser  for  whose  accommodation  the 
maker  signed  the  note ;  Bank  v.  Ryerson,  23  la.  508 ;  Holman 
V.  Whiting,  19  Ala.  703.  But  the  acceptor  cannot  require 
notice  of  a  demand  on  drawer  and  a  refusal,  even  though  he 


12!>0  iU(Ki;i;i)iKK  v.  ijoll.man. 

aici'ptcil  tor  the  accommodation  of  the  ilr.iwer  ;  Cox  r.  Rank, 
•JH  (ia.  ft'2*.K  Nor  can  an  indorscr  rcijnirc  notice  where  the 
maker  is  not  liahh'  to  a  hoiui  fiile  indorsee  before  maturity  and 
foi  value:  I'erkins  v.  White,  3t>  Ohio  St.  oIJU.  Nor  can  one 
who  is  really  a  maker,  altliouijh  he  si^netl  apparently  as  an 
indoiser  ;  Raymond  v.  McNeal,  'M\  Kan.  471.  Hut  an  imhu-ser 
on  an  accomnuxhition  not*-,  nuide  for  the  lx,'nefit  of  the  maker, 
as  also  the  drawer  of  an  accommodation  \n\\,  is  entitled  to 
notice;  lio^^'y  r.  Keil,  1  Mo.  74:5;  Denny  v.  I'alnicr,  ")  Ired.  tJlO; 
Shcrrod  /•.  Kliodfs,  .'>  Ala.  >>s:{. 

A  third  form  in  which  the  fraud  may  show  itsidf  is  where 
the  hill  is  rejj^ularly  drawn,  hut  later  the  drawer  (jr  indorser 
agrees  to  take  care  of  it,  thus  assuming;  a  primary  liability.  In 
such  case  of  coui-se  he  is  nt)t  entitled  to  notice  ;  Hond  r.  Farn- 
ham,  'j  Mass.  170.  An  attempt  luus  l)een  made  to  tix  /mmtihft- 
injur//  to  the  drawer  or  indorsi-r  as  the  distin^^uishin*;  mark,  hut 
that  it'ally  leaves  it  as  lx;f«)re,  for  in  contemplation  of  law,  want 
of  notice  may  always  woik  injury,  and  it  is  by  no  nuans  a  case 
i)(  (iiitnnmn  dfixifiir  injtiriir  ;  liank  r.  Iluj^hes,  17  Wend.  *J4.  In 
the  case  of  a  ifii(iriiiit'>r  tlu-  aujount  of  po.ssible,  or,  rather,  actual 
injury,  which  has  come  to  him  from  lack  of  notice,  is  sometimes 
allowed  to  he  shown:  liiackett  v.  Rich,  23  Minn.  48');  Newton 
{'.  Dicrs,  10  Neb.  2S4 ;  althoui^h  it  is  usually  held  that  a  guar- 
antor has  no  idaim  to  notice,  his  liability  not  l)eing  conditional 
on  that.  The  notice  must  l)e  actual,  or  at  least  a  reasonable 
endeavor  uuist  be  made  by  the  holder  to  j^ive  the  notice. 
There  is  no  such  thinj^  as  constructive  notice.  Even  well-known 
insolvency  or  bankruptcy  of  the  drawee  is  not  sulVicient  notice  ; 
sonu'thiiio-  further  must  be  shown.  The  rule  has  become  arbi- 
trarily lixcd,  and  it  makes  no  ditTerence  that  as  a  matter  of  fact 
the  drawer  or  indorser  wouM  have  been  in  no  better  })osition 
had  he  been  notilied.  The  holder  neglects  to  give  notice  at  his 
peril. 

And  if  funds  were  in  the  hands  of  the  drawer,  the  drawee 
will  be  entitled  to  notice  even  if  he  did  actually  know  of  the 
insolvency  ;  Cedar  Falls  v.  Wallace,  83  N.  C.  225.  So,  too,  the 
insolvency  of  drawer  or  maker  does  not  excuse  not  giving 
notice ;  Myers  v.  Coleman  Anth.  N.  P.  (N.  Y.)  205 ;  Bank  v. 
Connoway,  4  Houst.  (Del.)  206.  The  fraud  has  the  effect  of 
depriving  only  the  one  perpetrating  it  of  notice  ;  a  fraud  by  a 
drawee  would  not  affect  a  botid  fide  indorser  nor  vice  versa.     If 


BICKERDIKE    V.    BOLLMAN.  1291 

one  indorser  commit  a  fraud  this  must  not  affect  another  in- 
dorser  in  good  faith.  Fraud  does  not  reach  beyond  the  person  ; 
Bank  v.  Vanmeter,  4  Rand.  553 ;  see  also  Fen  wick  v.  Sears,  1 
Cr.  259. 

The  exception  in  regard  to  accommodation  paper  does  not 
act  to  deprive  a  hoyid  fide  indorser  of  his  right  to  notice.  He 
is  as  much  entitled  as  though  it  were  not  accommodation  paper ; 
his  position  in  each  case  is  the  same  ;  he  is  only  secondarily 
liable,  and  no  circumstance  except  fraud  on  his  part  can  make 
him  anything  else ;  French  v.  The  Bank,  4  Cr.  Ill ;  Jackson 
V.  Richards,  2  Cai.  343;  Smith  v.  M'Lean,  Taylor,  N.C.  72; 
Richter  v.  Selin,  8  S.  &  R.  439 ;  Holland  v.  Turner,  10  Conn. 
308. 

In  the  case  of  a  l^ill  drawn  for  the  accommodation  of  the 
acceptor,  the  drawer  occupies  the  same  relative  position.  Under 
no  circumstances  is  he  primarily  liable ;  hence  he  must  have 
notice ;  Shirley  v.  Fellows,  9  Port.  300.  Where  the  whole 
transaction  is  within  a  firm,  i.e.^  when  the  drawer  is  a  member 
of  the  firm  on  which  the  bill  is  drawn,  or  vice  versa.,  the  law 
implies  that  the  knowledge  of  one  is  knowledge  of  all,  and  no 
formal  notice  need  be  given.  In  this  case  the  law  seems  to 
accept  the  doctrine  of  constructive  notice.  If  the  firm  shall  fail 
to  pay  it  is  assumed  that  each  individual  partner,  the  drawer, 
etc.,  must  have  known  of  the  fact  of  insolvency  at  once,  and  he 
could  not  take  any  step  to  protect  himself,  his  individual  liabil- 
ity remaining  over  and  above  what  the  firm  could  pay ;  Fuller 
V.  Hooper,  3  Gray  334;  Gowan  v.  Jackson,  20  Johns.  176; 
Porthouse  v.  Parker,  1  Camp.  82 ;  New  York  Co.  v.  Meyer,  51 
Ala.  325.  If  it  be  ivliolly  within  the  firm  the  rule  holds ;  Hill 
V.  Bank,  3  Humph.  670.  But  if  the  transaction  is  between  two 
firms  consisting  partly  of  the  same  members,  the  rule  does  not 
hold  good  and  notice  must  be  given ;  Dwight  v.  Scovil,  2  Conn. 
654.  See  contra.,  New  York  Co.  v.  Selma  Bank,  51  Ala.  305. 
Where  the  transaction  is  by  the  partners  in  their  individual 
capacity,  one  as  drawer,  the  other  as  indorser,  notice  is  neces- 
sary ;  Morris  v.  Husson,  4  Sandf.  93  ;  Poland  v.  Boyd,  23  Pa.  St. 
476. 

The  same  rule  does  not  apply  to  joint  drawers  or  indorsers  as 
to  partners.  Notice  must  be  given  to  each  to  charge  him  ;  Sayre 
v.  Prick,  7  W.  &  S.  383;  Miser  v.  Trovinger,  7  Ohio  St.  281; 
and  W'illis  v.  Green,  5  Hill  232,  goes  so  far  as  to  say  that  all 


llil'J  HK  KKKDIKK     V.     IJOLLMAN. 

must  have  notice  in  oriUr  lliiil  iiiiy  of  tliein  may  l)e  liable,  and 
in  ease  one  be  dead  notice  must  l)e  t^iven  t.i  liis  t-state.  St-e  on 
this  point,  also,  I'eople's  Hank  v.  Keeeh,  '2*>  Md,  ')21,  and  Dabney 
t'.  Stidj^'er,  4  Sm.  *S:  Mar.  74!*,  which  case  also  hohls  that  notice 
to  tiie  surviving'  partner  is  notice  to  the  firm  and  sullicient  to 
Imld  the  estate  of  <leeeased.  See  c»nfni,  Dod^'f  v.  hank,  2  A.  K. 
Maish.  tllii ;  liiM;uriiis  r.  Morrison,  \  i);iii;i  loo.  It  is  doubtful 
wht'liier  notice  to  one  of  two  or  more  executors  is  notice  to  all; 
(iiyu<;a('o.  liank  r.  Uennett,  o  Mill  'I'M.  This  ciise  decides 
that  one  executor  has  not  power  to  waive  notice,  etc.,  so  ns 
to  bind  his  executors.  The  whole  tendency  of  the  law  seems  to 
be  to  restrict  the  powers  of  one  executor  aitini^  witliout  his  co- 
executors. 

'I'he  sanu'  princijile  whiih  applies  in  cjwe  of  a  partner  drawing 
on  his  firm  applies  when  the  same  party  ap[)ears  in  the  transac- 
tion in  a  dual  capacity,  whether  it  \k'  as  maker  and  indoi-scr  or 
as  drawer  and  acceptor;  Au;;hinbau^h  c.  J{ol)erts,  4  W.  N.  C. 
(  Pa.)  ISl  ;  Smith  r.  Paul,  <S  Porter  r>(i:J. 

When  a  strani,'cr  writes  his  name  on  the.  back  of  the  bill  or 
note,  he  makes  himself  prima  t'ltrie  a  joint  maker  and  is  not 
entitled  to  notice;  liaker  v.  Block,  ^50  Mo.  -2");  see  Richards  v. 
Warring,  31>  Harb.  o o ;  Ma.ssey  v.  Turner,  2  lloust.  (Del.)  79; 
Worcester  Hank  v.  Lock-Stitch  Fence  Co.,  24  Fed.  Kei).  221. 

A  guarantor  or  surety,  although  not  primarily  liable,  is  not 
entitled  to  notice:  the  only  condition  imposed  on  liis  liability  is 
that  the  one  primarily  liable  .shall  fail  to  pay,  then  his  liability 
arises;  Allen  r.  Ivightmere,  20  Johns.  305;  Matthewson  v. 
Sprague,  1  K.  1.  S;  Clark  v.  Merriam,  2o  Conn.  570  ;  Scott  v. 
Shirk,  t;o  Ind.  100. 

One  case  is  contra  and  tries  to  make  out  that  the  guarantor 
is  entitled  to  notice,  except  in  the  case  of  the  insolvency  of  the 
original  promisor;  lirooks  v.  Morgan,  1  Harr,  (Del.)  123.  This 
case  cannot  be  supported  on  principle.  The  whole  theory  of 
the  exception  is  admirably  summed  up  in  these  few  words : 
"  It  is  a  maxim  that  no  man  shall  take  advantage  of  his  own 
wrong;"  Fotheringham  v.  Price,  1  Ha}-  291,  293.  The  fraud 
may  be  perpetrated  by  indorsing  a  bill  or  note  which  is  tainted 
with  usury,  for  in  tliis  way  it  is  caused  to  be  "  presented  against 
no  funds."  In  such  case  nothing  is  transferred  by  the  indorse- 
ment, the  contract  being  void  ab  initio;  Copp  v.  M'Dugall,  9 
Mass.  1.  The  cases  differ  as  to  what  is  a  sufficient  allegation 
in  the  pleadings  to  permit  proof  of  -no  f  untls  "  as  "notice." 


BICKEEDIKE    V.    BOLLMAN.  1293 

In  Frazier  v.  Harvie,  2  Litt.  180,  both  allegations  were  made, 
and  there  is  a  dictum  that  "  no  funds  "  was  a  necessary  allega- 
tion. The  following  case  points  the  same  way ;  Hill  v.  Varrell, 
3  Greenl.  233,  236. 

The  opposite  view  is  taken  in  the  following  cases :  Shirley  v. 
Fellows,  9  Port.  300 ;  Camp  v.  Bates,  11  Conn.  487,  493 ;  Pat- 
ton  V.  McFarlane,  3  P.  &  W.  419,  425;  Spann  v.  Baltzell,  1  Fla. 
301,  326  ;  and  it  is  held  that  an  allegation  of  "  notice  "  may  be  sup- 
ported by  any  evidence  which  shows  notice,  —  fraud,  of  course, 
being  treated  as  notice,  or  any  excuse  for  not  giving  notice.    Of 
course  the  drawer  or  indorser  may  waive  his  privilege  of  notice  ; 
but  in  doing  this  it  must  clearly  appear  that  he  did  so  intention- 
ally, with  full  knowledge  of  his  rights ;  or  else  it  must  appear 
that  he  is  estopped  to  deny  full  knowledge  by  having  by  his  act 
put  the  holder  in  a  worse  position  than  he  would  otherwise  have 
occupied,  by  making  him  believe  a  waiver  was  intended  ;  Bruce 
V.  Lytle,  13  Barb.  163 ;  Trimble  v.  Thorne,  16  Johns.  152 ;  Teb- 
betts  V.  Dowd,  23  Wend.  379 ;  Bank  v.  Dill,  5  Hill  403 ;  Bank 
V.  Ashworth,  105  Mass.  503;  Hopkins  v.  Liswell,  12  Mass.  52; 
Creamer  v.  Perry,  17  Pick.  332;  Gove  v.  Vining,  7  Mete.  212; 
Whitaker  v.  Morrison,  1  Fla.  25,  32 ;    Schmidt  v.  Radcliffe,  4 
Strob.  296  ;  Bank  v.  Wray,  4  Id.  87  ;  Robbins  v.  Pinckard,  5  S.  & 
M.   51;    Merrimack   Co.   Bank  v.   Brown,  12  N.  H.  320,  325 ; 
Norris  v.  Ward,  59  Id.  487 ;  Bank  v.  Leathers,  10  B.  Mon.  64, 
m  ;  Moyer's  Appeal,  87  Pa.  St.  129 ;  Tobey  v.  Berly,  26  111.  426  ; 
Tardy  v.  Boyd,  26  Gratt.  631 ;  Johnson  v.  Arrigoni,  5  Oregon 
485 ;  Matthey  v.  Gaily,  4  Cal.  62 ;  Harvey  v.  Troupe,  23  Miss. 
538 ;  Allen  v.  Harrah,  30  la.  363 ;  Ballin  v.  Betcke,  11  Id.  204 
Campbell  v.  Varney,  12  Id.  43 ;  Freeman  v,  O'Brien,  38  Id.  406 
Mense  v.  Osbern,  5   Mo.  544 ;    Dorsey  v.  Watson,   14  Id.  59 
Clayton  v.  Phipps,  14  Id.  399 ;  Salisbury  v.  Renick,  44  Id.  554 
Wilson  V.  Huston,  13  Id.  146 ;  Bogart  v.  McClung,  11  Heisk 
105 ;  Fell  v.  Dial,  14  S.  Car.  247 ;  Ford  v.  Dallam,  3  Cold.  67 
GoUaday  v.  Bank,  2  Head  57 ;  Power  v.  Mitchell,  7  Wis.  161 

A  waiver  must  be  made  with  full  knowledge  of  all  the  facts 
but  this  will  be  presumed  from  a  promise  to  pay.  This  pre- 
sumption must  then  be  rebutted  by  the  promisor ;  Low  v.  How- 
ard, 10  Cush.  159 ;  Tower  v.  Durell,  9  Mass.  332 ;  Myers  v. 
Coleman,  Anth.  N.  P.  (N.  Y.)  205;  Kennon  v.  M'Rea,  7  Port. 
175  ;  and  even  though  the  money  has  been  paid,  if  under  a  mis- 
take it  may  be  recovered  back  ;  Offit  v.  Vick,  Walker  (Miss.) 


12'J4  IJUKKUblKl':    V.    noLLMAN. 

99.  Hut  this  apjjlies  only  to  a  mistake  of  fact.  Every  man  is 
pri'sunicd  to  know  the  l;i\v,  un<l  if  ii  man  lias  simply  erieil  fi(»m 
ignoianic  of  llit;  law  he  will  not  l>e  piutectod ;  (ii'shire  i'.  Taylor, 
29  la.  492;  Ilughes  v.  liowen,  lo  I.l.  Mf, ;  I{;ii,k  r.  Asliwoith, 
105  Mass.  50:5;  but  .see  contra;  Williams  /•.  iJaiik,  9  IIeisk.441. 
The  autlioiitit's  are  not  a<;ivtMl  as  to  what  constitutes  a  waiver; 
partial  payment  certainly  does  ;  for  other  acts  it  is  necessary 
to  go  to  the  cases.  For  acts  constituting  waiver,  see  Knapp  r. 
Kunals,  :57  Wis.  1:55;  Sherer  r.  Hank,  :W  I'a.  St.  1:54;  Hihl.  r. 
Peyton,  11  Sm.  v\:  .Mar.  275;  Tnion  Hank  v.  (iovan,  10  Id.  ;{:ja ; 
Staylor  v.  Hall,  21  Md.  is:^;  Mo(»re  v.  Tate,  1  King's  Dig. 
(Tenn.)  200;  Minlurn  r.  Fisher,  7  Cal.  57:i ;  Leonard  v.  Hast- 
ings, 9  Id.  2:50;  Tratte  i\  McCall,  1  .M(..  :55 ;  Airey  r.  Pearson, 
'M  Id.  121  ;  Harness  r.  Savings  Ass.,  4t'»  Id.  ;)57  ;  Tiiilcr  r.  Miir- 
jtliy  Furnishing  (ioods  Co.,  24  Mo.  Ap.  420;  Andrews  r.  Hoyd, 
'6  Met.  4:34;  Hoyd  r.  Cleveland,  4  Hi.k.  525;  Hank  v.  Callin,  1:3 
Vt.  39;  Stahl  r.  Woltc,  f,  W.N.  C.  M'a.)  14:5;  Hank  r.  Conno- 
way,  4  Himston  200;  Cardwell  *•.  Allan,  :5;5  (Jratt.  1«;0;  Whit- 
ridge  V.  Kider,  22  .Md.  548;  Hiker  i\  A.  »S:  W.  Sprague  Mfg. 
Co.,  14  K.  I.  402;   DulYy  v.  O'Conner,  7  Hax.  498. 

The  New  York  cases  incline  to  construe  all  acts  as  waivers 
wliich  they  reasonably  can ;  Rope  v.  Van  Wagner,  :3  N.  V.  State 
Rep.  150;  Spencer  r.  Harvey,  17  Wend.  480;  Sheldon  r.  Hor- 
ton,  bS  Harl).  2:3;  Sheldon  v.  Chapman,  :51  N.  V.  044  ;  Holling 
V.  Sprague,  24  Wk.  Dig.  07  ;  Russell  v.  Cronkhite,  :52  Harh.  282; 
Coddington  v.  Davis,  :3  Den.  10.  See  contra  ;  Hank  v.  Knower, 
Lalor's  Sup.  to  Hill  &  Denio,  122;  Lilly  v.  Petteway,  73  N.  C. 
358;  Wheeler  v.  Souther,  4  Cush.  006;  Creamer  v.  Perry,  17 
Pick.  332;  Freeman  v.  O'Hrien,  38  Iowa  400;  Olendorf  v. 
Swartz,  5  Cal.  480.  The  cases  agree  that  parol  evidence  of 
waiver  is  sutlicient  if  made  after  the  time  of  the  indorsement; 
Power  V.  Mitchell,  7  Wis.  161 ;  Dye  v.  Scott,  35  Ohio  St.  194  ; 
Barclay  v.  Weaver,  19  Pa.  St.  396  ;  Hazard  v.  White,  26  Ark. 
155;  Rodney  I'.  Wilson,  07  Mo.  12:5:  Heeler  v.  Frost,  70  Id. 
185;  Haskerville  v.  Whitlield,  41  Miss.  5:35.  In  Pennsylvania, 
Ohio,  and  Arkansas  parol  waiver  at  time  of  indorsement  may 
be  shown :  in  the  other  States  not.  See  Annville  Hank  v.  Ket- 
tering, 100  Pa.  St.  531. 

One  partner  may,  without  special  authority,  waive  demand 
and  notice  of  a  bill  drawn  in  the  regular  course  of  the  partner- 
ship business.     Farmers'  Bank  v.  Lonergan,  21  Mo.  40.     The 


BICKERDIKE    V.    BOLLMAN.  1295 

terms  of  a  written  waiver,  however,  cannot  be  restricted  by 
parol ;  Hayes  v.  Fitch,  47  Inch  21.  The  question  of  waiver  is 
said  to  be  for  the  jury ;  Lary  v.  Young,  13  Ark.  401 ;  Car- 
michael  v.  Bank,  4  How.  (Miss.)  567 ;  for  the  court,  Wilson  v. 
Huston,  13  Mo.  146.  Notice  is  not  waived  by  an  offer  of  pay- 
ment in  depreciated  bank  bills  without  explanation  ;  it  is  merely 
an  offer  of  compromise  ;  Newberry  v.  Trowbridge,  13  Mich.  263. 
Before  maturity  the  indorser  can  waive  onlj  demand  and  notice ; 
after  maturity  he  can  waive  proof  of  demand  and  notice  ;  Hoadley 
V.  Bliss,  9  Ga.  303 ;  Farmers'  Bank  v.  Wapes,  4  Harr.  (Del.) 
429;  Bryant  v.  Wilcox,  49  Cal.  47.  Waiver  does  not  extend 
beyond  the  person.  To  charge  an  indorser  a  demand  must  be 
made  at  maturity,  although  the  maker  has  told  the  holder  that 
he  will  not  be  able  to  pay  it ;  Applegarth  v.  Abbott,  64  Cal.  459. 

"  Protest  tvaived  "  dispenses  with  all  legal  steps  after  demand 
to  charge  drawer  or  indorser  ;  Porter  v.  Kemball,  53  Barb.  467 ; 
•  Coddington  v.  Davis,  1  N.  Y.  186:  Shaw  v.  McNeill,  95  N.  C. 
535 ;  Fisher  v.  Price,  37  Ala.  407 ;  Mcllvaine  v.  Bradley,  1  Dis- 
ney (Ohio)  194;  Fitch  v.  Citizens'  Bank,  97  Ind.  211;  Contin. 
Life  Ins.  Co.  v.  Barber,  50  Conn.  567.  To  waive  demand  there 
must  be  a  waiver  of  demand ;  nothing  less  will  do  it.  This  of 
course  also  waives  all  subsequent  steps ;  Jaccard  v.  Anderson, 
37  Mo.  91  :  Sprague  v.  Fletcher,  8  Oreg.  367 ;  Dye  v.  Scott,  35 
Ohio  St.  194. 

A  telegram  sent  by  the  indorser  of  a  note  to  the  collecting 
bank,  requesting  it  to  pay  the  note  and  mve  pi-otest,  and  draw 
on  him,  is  a  waiver  of  both  demand  and  notice ;  Seldner  v. 
Mount  Jackson  Bank,  66  Md.  488.  See,  also.  Corner  v.  Pratt,  138 
Mass.  446. 

If  an  indorser  guarantees  payment  or  acknowledges  receipt 
of  notice  of  protest,  this  relieves  the  holder  from  making  de- 
mand or  giving  notice  ;  City  Savings  Bank  v.  Hopson,  53  Conn. 
453.  Notice  to  assignee  in  bankruptcy  of  indorser  is  not  suffi- 
cient ;  it  must  be  personal ;  House  v.  Vinton  Bank,  43  Ohio  St. 
346.  See,  also,  Donnell  v.  Lewis  County  Savings  Bank,  80  Mo. 
165.  Notice  to  the  payee's  assignee  for  the  benefit  of  creditors 
may  be  sufficient  to  charge  the  indorser ;  Callahan  v.  Kentucky 
Bank,  82  Ky.  231. 

Although  protest  is  not  necessary  on  an  inland  bill,  yet  its 
waiver  in  such  case  is  construed  to  signify  as  much  as  when 
appUed  to  foreign  bills ;  Shaw  v.  McNeill,  95  N.  C.  535.     See. 


12\Ht  IJICKKUDIKK     \.     lioLLMAN. 

also,  Johnson  v.  Piusons,  1  10  .M,i>>.  IT^i.  Tlie  waiver  may  Ix?  in 
the  bill  or  note  itself,  thfii  notice  need  not  Ik-  pioved  :  liiyant 
r.  Tayh)!-,  lit  Minn.  :V.m;:  liooker  r.  Morris,  CI  Ind. -Jst;;  Xeal 
V.Wood,  23  Id.  ')-2^[  Lowry  v.  Steel,  liT  Id.  IDS;  Smith  i<. 
Loekiidge,  H  Hush  4-)l.  A  waiver  of  notice  of  [)rotest  in  a 
note  payable  to  order,  by  all  tiie  parties  to  the  note,  binds  the 
payee  who  indorses  the  note  to  make  it  negotiable;  Woodward 
V.  Lowry,  74  fia.  14H.  The  Tenne.ssee  aet  of  Feb.  24,  1879, 
permitting'  a  delay  in  protest  and  notice  where  an  epitlemie  is 
j)revaleiit,  does  not  preclude  an  immediate  notice;  Ilanauer  t'. 
Anderson,  Iti  Lea  (Tenn.)  -U^. 

As  to  what  constitutes  «lue  dili<;em'e,  see  America  Bank  v. 
Shaw,  142  Mass.  21*0.  If  the  notice  is  directed  to  the  indorser, 
giving  the  name  of  town  ;ind  stat»',  it  is  sntlicient  when  the 
houses  on  the  street  are  not  numbered  and  there  is  no  carrier's 
delivery;  Morse  i*.  Chand)erliu,  144  .Ma.ss.  40G.  Notice  to  part- 
ners as  indorsers  is  sulhcient  wbcn  left  at  the  place  of  business 
with  one  in  charge,  or  at  the  residence  of  either  partner;  St. 
Louis  Bank  v.  Altheimer,  1>1  Mo.  IIM).  Notice  nmst  be  direited 
to  the  i)roper  jjost-othce  of  the  indorser  to  i)ind  him;  Northwest- 
ern Coal  Co.  /'.  r>o\\Mian,  •>;»  Iowa  1*)0.  See,  also,  Phelps  v. 
Stocking,  21  Neb.  44:}. 

Infancy  of  the  maker  of  a  note  does  not  excuse  the  want  of 
a  demand  on  him  by  the  holder  in  order  to  charge  the  indorser. 
Such  a  note  is  voidable  <»nly,  not  void,  and  infancy  is  solely  a 
personal  privilege ;  Wyman  v.  Adams,  12  Cush.  210. 

Although  the  law  allows  no  exception  to  the  rule  of  notice 
save  in  case  of  fraud,  it  is  not  so  strict  in  defining  notice  as  we 
might  expect. 

Due  diligence  on  the  part  of  the  holder  to  give  notice  to 
drawer  or  indorsers  is  all  that  is  required,  and  if  for  any  reason 
he  is  unavoidably  prevented  from  giving  the  notice  at  the 
proper  time  but  does  give  it  as  soon  as  possible,  or  if  for  any 
reason  the  notice  is  not  received,  still  he  will  be  protected ; 
Staylor  v.  P,all,  24  :\Id.  183;  Robinson  v.  Hamilton,  4  Stew.  & 
Port.  91 ;  Foard  v.  Johnson,  2  Ala.  oOo ;  Roberts  v.  Mason,  1  Id. 
373 ;  Nevill  v.  Hancock,  15  Ark.  511  ;  Winston  v.  Richardson, 
27  Id.  34. 

Various  circumstances  may  render  it  impossible  to  make 
demand  at  the  proper  time  or  to  give  immediate  notice,  e.i/., 
accident,  interruption    of   communication,  or   sickness    of   the 


BICKEKDIKE    V.    BOLLMAN.  1297 

holder,  if  it  be  both  sudden  and  so  severe  as  to  prevent  him 
from  making  demand  or  giving  notice  or  having  it  done  by 
some  one  else  ;  Wilson  v.  Senier,  14  Wis.  380 ;  Morgan  v.  Bank, 

4  Bush  82.  As  soon  as  the  impediment  is  removed  the  demand 
must  be  made  and  the  notice  given.  If  notice  can  be  given, 
although  demand  is  impossible,  it  must  be  given ;  Lane  v.  Bank, 
9  Heisk.  419. 

For  cases  showing  what  constitutes  diligence,  see  Betts  v. 
Cox,  2  City  Ct.  (N.  Y.)  31 ;  N.  Y.  Belting  &  Packing  Co.  v.  Ela, 
61  N.  H.  352 ;  United  States  Bank  v.  Burton,  58  Vt.  426  ; 
McClelland  v.  Bishop,  42  Ohio  St.  113 ;  Edmonston  v.  Gilbert, 
3  Mackey  (D.  C.)  361 ;  Morton  v.  Cammack,  4  MacArthur 
(D.  C),  22;  Commerce  Bk.  v.  Chambers,  14  Mo.  App.  152; 
Pearce  v.  Langfit,  101  Pa.  St.  507.  Notice  mailed  two  days 
after  dishonor  is  usually  too  late  ;  Sanderson  v.  Sanderson,  20 
Fla.  292. 

The  cases  differ  as  to  what  is  a  sufficient  allegation  in  the 
pleadings  to  permit  proof  of  "  circumstances  "  as  "  notice ; " 
Hall  V.  Davis,  41  Ga.  614 ;  Kennon  v.  M'Rea,  7  Port.  (Ala.) 
175 ;  Faulkner  v.  Faulkner,  73  Mo.  327 ;  Martin  v.  Ewing,  2 
Humph.  559  ;  Norton  v.  Lewis,  2  Conn.  478  ;  Moore  v.  Ayres, 

5  S.  &  M.  310.  But  if  partnership  of  drawer  and  drawee  be 
the  "  circumstance,"  it  must  be  alleged ;  Harwood  v.  Jarvis,  5 
Sneed  375.  In  Texas  and  Iowa  a  stricter  rule  applies,  and  a 
specific  allegation  is  necessary ;  Cole  v.  Wintercost,  12  Tex. 
118 ;  Lumbert  v.  Palmer,  29  la.  104. 

Indemnity.  —  When  a  drawee  assigns  his  property  to  or  in- 
demnifies an  indorser,  the  indorser  undertaking  to  provide  for 
the  bill,  he  is  not  entitled  to  notice  as  he  has  assumed  a  primary 
liability.  The  leading  case  on  this  point  is  Bond  v.  Farnham, 
5  Mass.  170.  The  indorser  received  all  the  property  of  the 
maker  of  the  notes  for  the  purpose  of  taking  care  of  the  notes. 
He  assumed  a  primary  liability.  See,  also.  Barton  v.  Baker, 
1  S.  &  R.  334.  It  all  turns  on  whether  the  circumstances  are 
such  as  to  imply  that  the  indorser  did  assume  a  primary  lia- 
bility. If  he  receive  all  the  property  of  the  one  originally  pri- 
marily liable,  or  if  he  receive  enough  to  pay  the  bill,  the  law  will 
assume  that  he  agreed  to  be  primarily  liable.  If  he  gets  all  the 
maker  has,  he  cannot  then  be  injured  by  lack  of  notice  ;  he  could 
not  do  anything  to  protect  himself  further ;  but  if  he  does  not 
get  all  and  the  indemnity  is  only  partial  and  there  is  no  express 


l:i'J8  niCKKKDIKK    \.     i;< 'I.I.MAN. 

promise'  to  tiikf  ciin;  of  tlio  hill,  the  l;i\v  will  lu'situte  to  iniplv 
8ULh  a  promise;  Diiihiim  v.  I*ii«e,  ')  Vi-ri,'.  '500;  nniiisou  v. 
Nui)ic'r,  1  Id.  1:>1»;  Lflliiij;\vi'll  r.  Whiti-,  1  .1. .1ms.  ("as.  ".»'.» ;  Mraul 
V.  Small,  2  (fieeiileaf  207;  Hank  v.  ( JrisuuM,  7  Wfinl.  !•».'); 
Co(l(liiiL,ftoii  r.  Davis,  l\  Den.  1<>,  -•».  Whinr  llu;  indoistT  ht-ld 
j^oods  for  uhiiih  the  note  wsis  given  as  security  for  his  indoi-se- 
ment,  this  was  held  not  to  dispense  with  notice  to  him  ;  Holland 
v,  'rurncr,  10  Conn.  J^OS.  Theri'  heinj,'  no  a<;reement  to  pay. 
IJut  if  fully  indemnitied  it  is  held  that  no  notice  is  necessary  ; 
Develiiif,'  r.  Ferris,  IS  Ohio  17<);  IJeard  r.  Westerman,  .'52  Ohio 
St.  2'.i.  (  olhitcral  security  is  not  sjilVuifnt  ;  In-  must  he  al)- 
solutely  indcmniticil ;  Kramer  r.  Sandford,  4  \V.  A:  S.  :>2>f ; 
Walters  r.  Munroe,  17  Md.  l')l,  says,  if  ahsolutely  iudemnilied 
bcj'orf  note  falls  due,  no  need  of  notii-e  ;  hut  if  not  j^iveii  uiitd 
(i/frr  he  has  heen  disc  hari,n'd  for  want  of  notice,  an  iudeuuiity 
against  i/fntrul  liahilities  is  not  suHicient ;  Carlisle  r.  Hill,  1<J 
Ala.  8HH.  In  any  case  to  excuse  want  of  notice  the  indemnity 
nnist  he  ample.  Simply  an  lussignment  for  all  transactions  un- 
less ample  is  not  sutVudent;  Van  Nonlen  r.  Buckley,  5  Cal.  2H3 ; 
liank  r.  MeCniire,  1^8  Ohio  St.  205.  Where  the  maker  in<lem- 
nilics  his  iiidorser,  and  aftei  wards  shows  him  the  note  saying 
he  h;is  paid  it,  and  demanding  and  ohtaining  a  ridease  of  the  in- 
denniity,  if  it  has  not  heen  paid  want  of  notice  cannot  he 
excused  on  the  giouud  of  indemnity;  Hank  r.  Marston,  7  Ala. 
108.  If  with  full  knowledge  of  all  the  facts  an  ind(U\ser  accepts 
indemnity  afti;r  discharge,  it  is  persuasive  eviilence  of  his  lia- 
bility ;  Harding  v.  Waters,  6  IJ.  J.  Lea  324;  Hank  v.  (iovan, 
10  Sm.  &  Mar.  383. 

See  generally  on  the  subject  of  indemnity;  Wilson  r.  Senier, 
14  Wis.  380 ;  Watt  v.  Mitchell,  6  How.  (Miss.)  131  ;  Walker 
V.  Walker,  7  Ark.  542;  Creamer  v.  Perry,  17  Pick.  332;  Selby 
V.  Buckley,  1  Kings  Dig.  (Tenn.)  2G1 :  Irelind  v.  Kip,  Anth. 
N.  P.  (N.V.)  195:  Spencer  v.  Harvey,  17  Wend.  4S0;  Bruce 
V.  Lytle,  13  Barb.  lt)3;  Denny  i\  Palmer,  5  Ired.  610;  Hayes 
V.  Werner,  45  Conn.  24tj :  Kyle  v.  Green,  14  Ohio  405;  Wal- 
ters V.  Munroe,  17  Md.  154:  Brandt  v.  Mickle,  28  Id.  43«3 ; 
Holman  v.  Whiting,  10  Ala.  703;  Cockrill  v.  Hobson,  16  Id. 
301.  Where  a  surviving  indorser  took  indemnity  from  the 
maker,  and  collected  thereon  nearly  the  whole  amount,  held  an 
admission  by  him  that  the  proper  steps  had  been  taken  to 
charge  both  indorsers ;  Willis  v.  Green,  5  Hill  232.     In  Geor- 


BICKEUDIKE    Y.    BOLL]VIAN.  1299 

gia  by  statute  no  demand  or  notice  is  required  on  notes  unless 
they  are  to  be  negotiated  at  a  chartered  bank  ;  Hoadley  v.  Bliss, 
9  Ga.  303.  The  courts  have  extended  this  to  include  bills ; 
Holmes  v.  McKenzie,  34  Ga.  558.  See,  also,  Randolph  v.  Flem- 
ing, 59  Ga.  776 ;  McLaren  v.  Bank,  52  Ga.  131 ;  Gilbert  v. 
Seymour,  44  Ga.  63. 

The  Texas  statute  permits  immediate  suit  to  excuse  want  of 
notice.  It  must  be  brought,  if  possible,  at  the  next  succeeding 
term.  See  Insall  v.  Robson,  16  Tex.  128.  This  statute  of  course 
applies  only  when  it  is  necessary  to  excuse  want  of  notice ; 
Durrum  v.  Hendrick,  4  Tex.  495 ;  Wood  v.  McMeans,  23  Id. 
484 ;  Platzer  v.  Norris,  38  Id.  1. 

In  Illinois  by  statute  no  notice  is  required  in  the  case  of 
promissory  notes ;    Harding  v.  Dilly,  60  111.  528. 


PASLEY    V.   FREEMAN. 


TJilXITY,  21)  GEO.  -.i.  —  IX   Till:   KISC'S   UESCII. 

[KKI'i»K1T.1>   ;{   T.    K.   .'.l.J 

A  false  afHrmntioiu  made  htf  the  defewlant  with  intent  to  defraud 
the  plaint iff\  wherel'i/  the  plaintiff  receivex  damat/e,  in  the  <i round 
of  an  action  upon  the  cane  in  the  nature  of  deceit.  In  nurh  an 
action,  it  is  not  necessary  that  the  defendant  should  he  henefited 
hji  the  deceit,  or  that  he  should  collude  with  the  person  who  is. 

This  was  an  aetion  in  the  nature  of  a  writ  of  deceit;  to 
which  the  ilefenchiiit  pleaded  the  general  issue.  And  after  a 
verdict  for  the  plaintilTs  on  the  third  count,  a  motion  was  made 
in  arrest  of  judL^nicnt. 

The  third  count  was  as  follows:  "and  whereas  also  the  said 
Jose})h  Freeman,  afterwards,  to  wit,  on  the  21st  day  of  Fel)- 
ruary,  in  the  year  of  our  Lord  1TM7,  at  London  aforesaid,  in 
the  i)arish  and  ward  aforesaid,  further  intendini,'  to  deceive  and 
defraud  the  said  John  I'asley  and  Edward,  did  wrongfully 
and  deceitfully  encouiage  and  persuade  the  said  John  Pasley 
and  Edward,  to  sell  and  deliver  to  the  said  John  Christopher 
Falch  divers  other  goods,  wares,  and  merchandises,  to  wit,  six- 
teen other  bags  of  cochineal  of  great  value,  to  wit,  of  the  value 
of  2634/.  16s.  1(/.,  upon  trust  and  credit ;  and  did  for  that  pur- 
pose there  and  then  falsely,  deceitfully,  and  fraudulently,  assert 
and  afhrm  to  the  said  John  Pasley  and  Edward,  that  the  said 
John  Christopher  then  and  there  was  a  i)erson  safely  to  Ije 
trusted  and  given  credit  to  in  that  respect;  and  did  thereby 
falsely,  fraudulently,  and  deceitfully,  cause  and  procure  the 
said  John  Pasley  and  Edward  to  sell  and  deliver  the  said  last- 
mentioned    goods,   wares,  and   merchandises,  upon    trust   and 

1300 


PASLEY   V.    FREEMAN.  1301 

credit,  to  the  said  John  Christopher ;  and  in  fact  they  the  said 
John  Pasley  and  Edward,  confiding  in  and  giving  credit  to  the 
said  hxst-mentioned  assertion  and  aihrmation  of  the  said  Joseph, 
and  beUeving  the  same  to  be  true,  and  not  knowing  the  con- 
trary thereof,  did  afterwards,  to  wit,  on  the  28th  day  of  Feb- 
ruary, in  the  year  of  our  Lord  1787,  at  London  aforesaid,  in  the 
parish  and  ward  aforesaid,  sell  and  deliver  the  said  last-men- 
tioned goods,  wares,  and  merchandises,  upon  trust  and  credit, 
to  the  said  John  Christopher ;  whereas  in  truth  and  in  fact,  at 
the  time  of  the  said  Joseph's  making  his  said  last-mentioned 
assertion  and  affirmation,  the  said  John  Christopher  was  not 
then  and  there  a  person  safely  to  be  trusted  and  given  credit 
to  in  that  respect,  and  the  said  Joseph  well  knew  the  same,  to 
wit,  at  London  aforesaid,  in  the  parish   and  ward   aforesaid. 
And  the  said  John  Pasley  and  Edward  further  say,  that  the 
said  John  Christopher  hath  not,  nor  hath  any  other  person  on 
his  behalf,  paid  to  the  said  John  Pasley  and  Edward,  or  either 
of  them,  the  said  sum  of  2634Z.  16s.  Id.  last  mentioned,  or  any 
part   thereof,  for  the    said   last-mentioned    goods,   wares,   and 
merchandises ;  but  on  the  contrary  the  said  John  Christopher 
then  was,  and  still  is,  wholly  unable  to  pay  the  said  sum  of 
money  last  mentioned,  or  any  part  thereof,  to  the  said  John 
Pasley  and  Edward,  to  wit,  at  London  aforesaid,  in  the  parish 
and  ward  aforesaid;    and  the   said  John  Pasley  and  Edward 
aver  that  the  said  Joseph  falsely  and  fraudulently  deceived 
them  in  this,  that  at  the  time  of  his  making  his  said  last-men- 
tioned assertion  and  affirmation,  the  said  John  Christopher  was 
not  a  person  safely  to  be  trusted  or  given  credit  to  in  that 
respect  as  aforesaid,  and  the  said  Joseph  then  well  knew  the 
same,   to  wit,   at   London   aforesaid,   in   the   parish   and  ward 
aforesaid ;  by  reason  of  which  said  last-mentioned  false,  fraudu- 
lent, and  deceitful  assertion  and  affirmation  of  the  said  Joseph, 
the   said  John   Pasley  and  Edward  have   been    deceived   and 
imposed  upon,  and  have   wholly  lost  the  said  last-mentioned 
o-oods,  wares,  and  merchandises,  and  the  value  thereof,  to  wit, 
at  London  aforesaid,  in  the  parish  and  ward  aforesaid :  to  the 
damage,"  &c. 

Application  was  first  made  for  a  new  trial,  which,  after  argu- 
ment, was  refused :  and  then  this  motion  in  arrest  of  judgment. 
Wood  argued  for  the  plaintiffs,  and  Russell  for  the  defendant, 
in  the  last  term :  but  as  the  court  went  so  fully  into  this  sub- 


loO'J  I'ASLKV    V.    I'KEKMAN. 

jt'Ct  in  giviiipf  their  opiiiidiis,  it  is  uunecessm y  to  ^ive  the  ar^i- 
inents  iit  tht;  hiir, 

Tl»o  court  took  time  to  consider  of  this  mutter,  iiiid  now  (h'- 
livered  their  opinions  nenatim. 

GroHt^  .].  rpon  the  fiiee  of  this  count  in  the  <lechinition,  no 
privity  of  contract  is  stiite«l  iM'tween  the  parties.  No  consi(K'ra- 
lioii  arises  tn  the  defendant.  And  he  is  in  no  situation  in  which 
tlje  hiw  consi(his  him  in  any  trust  or  in  whidi  it  (h-niands  from 
liim  any  account  of  tin*  credit  nf  I-'alch.  \\v  appears  not  to  Ik« 
interested  in  any  transaction  iM-twccn  the  phiintiffs  and  Fahdi, 
nor  to  have  colludeil  with  them;  luit  he  knowini,dy  iisserted  a 
falseliood  hy  sayinj^  that  Fahh  might  Ik;  safely  entrusted  with 
the  goods,  and  given  credit  to,  for  tliu  purpose  of  inducing  tlie 
phiintilYs  to  trust  him  witli  them,  hy  which  tlie  phiintitTs  h)st 
tlie  value  of  the  goods.  'I'hen  this  is  an  action  against  the  de- 
fendant for  making  a  false  athrmatitin,  or  telling  a  lie,  respect- 
ing till'  crrdil  of  ;i  thiid  pe|-son,  with  iuteut  to  deceivi',  hy 
which  the  third  person  was  [the  plaintilTs  were]  danniilied  :  and 
for  tin'  damages  sutTcrccl,  tlu'  iilaiiititTs  contend  that  the  de- 
fendant is  answt'rahlc  in  an  action  upon  the  iii>c.  It  is  ad- 
mitted, that  the  action  is  new  in  point  of  precedent  :  hut  it  is 
insisted  that  the  law  recognises  principles  on  which  it  may  l)e 
supported.  The  priiu'iple  on  which  it  is  contended  to  lie  is, 
that  wherever  deceit  or  falsehood  is  jjractised  to  the  detriment 
of  another,  the  law  will  give  redress.  This  [troposition  I  con- 
trovert ;  and  shall  endeavour  to  show,  that  in  every  case  where 
deceit  or  falsehood  is  practised  to  the  detriment  of  another,  tlie 
law  will  not  give  redress ;  and  I  say  that  hy  the  law,  as  it  now 
stands,  no  action  lies  against  any  person  standing  in  the  pre- 
dicament of  this  defendant  for  the  false  allirmation  stated  in  the 
declaration.  If  the  action  can  l)e  sujtported,  it  must  he  upon 
the  ground,  that  there  exists  in  this  case,  what  the  law  deems 
damnum  cum  injurid.  If  it  does,  I  admit  that  the  action  lies ; 
and  I  admit  that,  upon  the  verdict  found,  the  plaintiffs  appear 
to  have  been  damnified.  But  whether  there  has  been  injuria^ 
a  wrong,  a  tort  for  wliich  an  action  lies,  is  matter  of  law.  The 
tort  complained  of  is  the  false  affirmation  made  with  intent  to 
deceive  ;  and  it  is  said  to  be  an  action  upon  the  case  analogous 
to  the  old  writ  of  deceit.  When  this  was  first  argued  at  the 
bar,  on  the  motion  for  a  new  trial,  I  confess  I  thought  it  reason- 
able  that  the  action  should  lie :    but  on  looking  into  the  old 


*  PASLEY   V.    FREEMAN".  1303 

books  for  cases  in  which  the  old  action  of  deceit  has  been  main- 
tained upon  the  false  affirmation  of  the  defendant,  I  have 
changed  my  oj^inion.  The  cases  on  this  head  are  brought  to- 
gether in  Bro.  tit.  Deceit^  pi.  29,  and  in  Fitz.  Abr.  I  have  like- 
wise looked  into  Danvers,  Kitchins,  and  Comyns,  and  I  have 
not  met  with  any  case  of  an  action  upon  a  false  affirmation, 
except  against  a  party  to  a  contract^  and  where  there  is  a  prom- 
ise., either  express  or  implied,  that  the  fact  is  true  which  is 
misrepresented :  and  no  other  case  has  been  cited  at  the  bar. 
Then  if  no  such  case  has  ever  existed,  it  furnishes  a  strong  ob- 
jection against  the  action,  which  is  brought  for  the  first  time, 
for  a  supposed  injury  which  has  been  daily  committed  for 
centuries  past ;  for  I  believe  there  has  been  no  time  when  men 
have  not  been  constantly  damnified  by  the  fraudulent  misrepre- 
sentations of  others :  and  if  such  an  action  would  have  lain, 
there  certainly  has  been  and  will  be,  a  plentiful  source  of  litiga- 
tion of  which  the  public  are  not  hitherto  aware.  A  vaiiety  of 
cases  may  be  put :  —  Suppose  a  man  recommends  an  estate  to 
another,  as  knowing  it  to  be  of  greater  value  than  it  is ;  when 
the  purchaser  has  bought  it,  he  discovers  the  defect,  and  sells 
the  estate  for  less  than  he  gave ;  wh}-  may  not  an  action  be 
brought  for  the  loss,  upon  any  principle  that  will  supjDort  this 
action  ?  And  yet  such  an  action  has  never  been  attempted. 
Or,  suppose  a  person  present  at  the  sale  of  a  horse  asserts  that 
he  was  his  horse,  and  that  he  knows  him  to  be  sound  and  sure- 
footed, when  in  fact  the  horse  is  neither  the  one  nor  the  other ; 
according  to  the  principle  contended  for  by  the  plaintijffs,  an 
action  lies  against  the  person  present  as  well  as  the  seller ;  and 
the  purchaser  has  two  securities.  And  even  in  this  veiy  case, 
if  the  action  lies,  the  plaintiffs  will  stand  in  a  peculiarly  for- 
tunate predicament,  for  they  Avill  then  have  the  responsibility 
both  of  Falch  and  the  defendant.  And  they  will  be  in  a  better 
situation  than  they  would  have  been,  if,  in  the  conversation  that 
passed  between  them  and  the  defendant,  instead  of  asserting 
that  Falch  might  safely  be  trusted,  the  defendant  had  said,  "  If 
he  do  not  pay  for  the  goods,  I  will ;  "  for  then  undoubtedly  an 
action  would  not  have  lain  against  the  defendant.  Other  and 
stronger  cases  may  be  put  of  actions  that  must  necessarily 
spring  out  of  any  principle  upon  which  this  can  be  supported, 
and  3'et  which  were  never  thought  of  till  the  present  action 
was  brought.     Upon  what  principle  is  this  act  said  to  be  an 


loU4  l'A.si,i.\     \.    I  r.KK.MAN. 

injury?  The  phiintiffs  say,  on  the  ^i»)iiii<I  that,  wlieii  the  (jues- 
tioii  was  asked,  tlu-  (k'feiidaiit  was  hound  to  tell  the  truth. 
'I'heic  aie  eases,  I  admit,  where  a  man  is  hound  not  to  niisiejH 
resent,  i)ut  to  tell  tlic  tiulh;  hut  no  such  case  has  heen  eited, 
exeept  in  the  ease  of  cnntructa  ;  anil  all  the  eases  of  deeeit  for 
niisinfoiniation  may,  it  seems  to  me,  l)e  turned  into  actions  of 
uxsumpHt'f.  And  so  far  from  a  person  liein^  hound,  in  a  ease 
like  tlie  jjresent,  to  tell  the  truth,  the  lM)oks  sui»i)ly  me  with  a 
variety  of  eases  in  whieh  even  the  coiitraetiuf^  party  is  not  lial)le 
for  a  misrepresentation.  There  are  eases  of  two  sorts,  in  which, 
tliiiu^di  a  man  is  deceived,  he  can  maintain  no  action.  The 
lirsl  class  of  cases  (thoUL,di  not  analoi^'ous  to  the  present)  is, 
where  the  aflirmation  is  that  the  thin^  s(d(l  has  not  a  defeet 
which  is  a  visihlc  one:  there  the  imposition,  the  fraudident 
intent,  is  admitted,  l)Ut  it  is  no  tort  (a).  The  second  head  of 
ciuses  is  where  the  aOirmation  is  (what  is  called  in  some  of  the 
books)  a  nude  assertion  ;  such  as  the  party  deceived  may  exer- 
cise his  own  judiTuient  upon  ;  as  where  it  is  a  matter  of  opinion, 
where  he  may  makt;  intjuiries  into  the  trtith  of  the  as.sertion, 
and  it  becomes  his  own  fault  from  laches  that  he  is  deci'ived. 
1  Roll.  Ahi.  101  ;  Velv.  lid;  1  Sid.  llf,  ;  ( 'ro.  Jac.  38») :  liaj/lt'i/ 
V.  Mcrn-l.  In  Ilnriu'i/  v,  Yoinni,  Yelv.  20,  J.  S.,  who  had  a  term 
for  years,  alhrnKMl  to  J.  I),  that  the  term  was  worth  1;>0/.  to  be 
sold,  upon  wliicli  ,].  I),  i^ave  150/.,  and  afterwanls  could  not  get 
more  than  lOO/.  for  it,  and  then  broUL,dit  his  action:  and  it  was 
allcired  that  this  matter  did  not  prove  any  fraud,  for  it  was 
only  a  naked  assertion  that  the  term  was  worth  so  much,  and  it 
was  the  plaintiff's  folly  to  give  credit  to  sueh  assertion.  But  if 
the  defendant  had  warranted  the  term  to  be  of  sueh  value  to  Ikj 
sold,  and  upon  that  the  plaintiff  had  bought  it,  it  would  have 
been  otherwise ;  for  the  warranty  given  by  the  defendant  is  a 
matter  to  induce  confidence  and  trust  in  the  plaintiff.  This 
ease,  and  the  passage  in  1  Ko.  Abr.  101,  are  recognised  in  1  Sid. 
146.  How,  then,  are  the  cases?  None  exist  in  which  such  an 
action  as  the  present  has  been  brought;  none,  in  which  any 
principle  applicable  to  the  present  case  has  been  laid  down  to 
prove  that  it  will  lie  —  not  even  a  dictum.  But  from  the  cases 
cited,  some  principles  may  be  extracted  to  show  that  it  cannot 
be  sustained ;    1st,  That  what  is  fraud,  wdiich  will  support  an 

(a)  See  Margetson  v.  Wright,  7  Bing.  G05;  8  Bing.  457;  3  Bl.  Comra.  166; 
Dyer  v.  Hargrove,  10  Ves.  507. 


PASLEY   V.    FREEMAN.  1305 

action,  is  matter  of  law ;  2clly,  That  in  every  case  of  a  fraudu- 
lent misrepresentation  attended  with  damage,  an  action  will  not 
lie,  even  between  contracting/  parties  ;  3dly,  That  if  the  assertion 
be  a  nude  assertion,  it  is  that  sort  of  misrepresentation,  the 
truth  of  which  does  not  lie  merely  in  the  knowledge  of  the  de- 
fendant, but  may  be  inquired  into,  and  the  plaintiff  is  bound  so 
to  do ;  and  he  cannot  recover  a  damage  which  he  has  suffered 
by  his  laches.  Then  let  us  consider  how  far  the  facts  of  the 
case  come  within  the  last  of  these  principles.  The  misrepresen- 
tation stated  in  the  declaration  is  respecting  the  credit  of  Falch; 
the  defendant  asserted  that  the  plaintiffs  might  safely  give  him 
credit :  but  credit  to  Avhich  a  man  is  entitled  is  matter  of  judg- 
ment and  opinion,  on  which  different  men  might  form  different 
opinions,  and  upon  which  the  plaintiffs  might  form  their  own : 
to  mislead  which  no  fact  to  prove  the  good  credit  of  Falch  is 
falsely  asserted.  It  seems  to  me  therefore,  that  any  assertion 
relative  to  credit,  especially  where  the  party  making  it  has  no 
interest,  nor  is  in  any  collusion  with  the  person  respecting 
whose  credit  the  assertion  is  made,  is  like  the  case  in  Yelverton 
respecting  the  value  of  the  term.  But  at  any  rate  it  is  not  an 
assertion  of  a  fact  peculiarly  in  the  knowledge  of  the  defendant. 
Whether  Falch  deserved  credit  depended  on  the  opinion  of 
many ;  for  credit  exists  on  the  good  opinion  of  many.  Respect- 
ing this,  the  plaintiffs  might  have  inquired  of  others,  who  knew 
as  much  as  the  defendant ;  it  was  their  fault  that  they  did  not, 
and  they  have  suffered  damage  by  their  own  laches.  It  was 
owing  to  their  own  gross  negligence  that  they  gave  credence  to 
the  assertion  of  the  defendant,  without  taking  pains  to  satisfy 
themselves  that  that  assertion  was  founded  in  fact,  as  in  the 
case  of  Bayley  v.  Merrel.  I  am  therefore  of  opinion,  that  this 
action  is  as  novel  in  principle  as  it  is  in  precedent,  that  it  is 
against  the  principles  to  be  collected  from  analogous  cases,  and 
consequently  that  it  cannot  be  maintained. 

Buller^  J.  The  foundation  of  this  action  is  fraud  and  deceit 
in  the  defendant  and  damage  to  the  plaintiffs.  And  the  ques- 
tion is.  Whether  an  action  thus  founded  can  be  sustained  in  a 
court  of  law.  Fraud  without  damage,  or  damage  tvitJiout  fraud , 
gives  no  cause  of  action  ;  hut  where  these  ttvo  concur,  an  action 
lies.  Per  Croke,  J.,  3  Bulst.  95.  But  it  is  contended,  that  this 
was  a  bare  naked  lie,  that,  as  no  collusion  with  Falch  is  charged, 
it  does  not  amount  to  a  fraud :  and,  if  there  were  any  fraud, 


VMn)  I'ASLKY   V.   I  i:i:i:.MAN. 

the  niitiui'  of  it  is  iidl  >liUi(i  and  it  w.i.s  .su|HK)st»l  by  llic  rouii- 
SL'l  who  ori<^iitiilly  iiuide  tlu;  inotioii,  tluit  no  iirtioii  i-oulil  Ih) 
iiiiiintaiiied,  unless  the  dufendant,  who  made  tills  false  tuisertioii, 
iiad  an  Interest  in  so  doln<r.  I  a<;n>t>  tiiat  an  aetlon  cannot  Ix) 
supported  for  telling  a  hare  naked  lie;  hut  that  I  «letine  to  l»o, 
sayini,'  a  ihin^  whiih  is  false,  knowiui;  or  not  knowing'  it  to  Ih3 
so,  and  without  any  desi^^n  t<»  injiin',  clu-al,  or  dei-eive,  anotlier 
person.  J'Jiuri/  ilerfit  coniftrfhi-miH  d  llf  ;  Intf  <i  ilereit  i»  more 
thiiii  a  lie,  on  aecount  of  tin-  view  with  which  it  is  praetisi-d,  its 
hein^  eou|>lt'd  with  smnr  dcaliiii,',  anil  the  injury  whieh  it  is 
calculated  to  occasion,  and  does  occasion,  to  an«>ther  person. 
Deceit  is  a  very  extensive  head  in  tlie  law;  and  it  will  he 
proper  to  take  a  short  view  of  some  of  tiie  eiises  which  have  ex- 
istiMl  on  the  suhject,  to  see  how  far  the  courts  have  j;»>ne,  and 
what  are  the  principles  upon  whieh  they  have  ileci«led.  I  lay 
out  of  the  (pU'stion  the  case  in  -  Cro.  19t»,  und  all  other  eases 
wiiirh  nlatc  to  freehold  interests  in  lands  ;  for  they  go  on  the 
speiial  reason  that  the  seller  cannot  have  them  without  title, 
and  tlu'  huyer  is  at  his  peril  to  see  it.  Hut  the  cases  citc(l  on 
the  part  of  the  defendant  deserving  notice  are,  ^'elv.  "Jo  ;  (arth. 
IM);  Salk.  lilO.  'Ihe  iirst  of  these  has  In-en  fully  stated  hy  n>y 
brother  G roue  :  hut  it  is  to  he  observed  that  the  book  does  not 
affect  to  give  the  reasons  on  which  the  court  delivered  their 
judgnient  ;  but  it  is  a  ease  ipioted  by  counsel  at  the  bar,  w  ho 
mentions  what  was  alleged  by  counsel  in  the  other  ease.  If 
the  court  went  on  a  distinction  Intween  the  words  warntnty 
and  (iffirmatlon,  the  case  is  not  law  :  for  it  was  rightly  held  by 
JJo/f,  ('.  ,1.,  in  the  subse(pU'nt  lases,  and  has  been  uniforndy 
ailopted  ever  sin»t',  that  an  allirination  at  the  lime  of  a  sale  is 
a  warranty,  provided  it  a[ipear  on  evidence  to  have  been  so  in- 
tended (<f).  lint  the  true  ground  of  that  ileterniination  was, 
that  the  assertion  was  of  mere  matter  of  judgment  and  opiiuon; 
of  a  matter  which  the  defendant  had  no  particular  knowledge, 
but  of  which  many  men  will  he  of  many  minds,  and  whiidi  is 
often  governed  by  whim  and  caprice.  Judgment  or  opinion,  in 
such  case,  implies  no  knowledge.  And  here  this  case  ditTers 
materially  from  that  in  Yelverton:  my  brother  Grose  considers 
this  assertion  as  mere  matter  of  opinion  only ;  but  I  differ  from 
him  in  that  respect;  for  it  is  stated  on  this  record,  that  the 
defendant  knew  tliat  the  fact  was  false.     The  ease  in  Yelv.  ad- 

(rt)  See  roicrr  v.  Barham,  4  Ad.  &  Ell.  473. 


'  PASLEY   V.    FEEEMAN.  1307 

mits,  that  if  there  had  been  fraud,  it  woukl  have  been  other- 
wise. The  case  of  Crosse  v.  Gardner,  Carth.  90,  was  upon  an 
affirmation  that  oxen,  which  the  defendant  had  in  his  possession, 
and  sold  to  the  phiintiff,  were  his,  when  in  truth  they  belonged 
to  another  person.  The  objection  <igainst  the  action  was,  that 
the  dechiration  neither  stated  that  the  defendant  deceitfully  sold 
them,  nor  that  he  knew  them  to  be  the  property  of  another  per- 
son ;  and  a  man  may  be  mistaken  in  his  property  and  right  to  a 
thing  without  cmy  fraud  or  ill  intent.  Ex  concessis,  therefore,  if 
there  were  fraud  or  deceit,  the  action  would  lie ;  and  knowl- 
edge of  the  falsehood  of  the  thing  asserted  is  fraud  and  deceit. 
But  notwithstanding  these  objections,  the  court  held  that  the 
action  lay,  because  the  plaintiff  had  no  means  of  knowing-  to 
whom  the  property  belonged  but  only  by  the  possession.  And 
in  Cro.  Jac.  474,  it  was  held,  that  alhrming  them  to  be  his, 
knowing  them  to  be  a  stranger's  is  the  offence,  and  case  of  ac- 
tion. The  case  of  Medina  v.  Stoughton  (a),  in  the  point  of  decis- 
ion is  the  same  as  Crosse  v.  Gardner :  but  there  is  an  obiter  dic- 
tum of  Bolt,  C.  J.,  that,  where  the  seller  of  a  personal  thing  is 
out  of  possession,  it  is  otherwise,  for  there  may  be  room  to  ques- 
tion the  seller's  title,  and  caveat  emjytor  in  such  case  to  have  an 
express  Avarranty  or  a  good  title.  This  distinction  by  Holt  is  not 
mentioned  by  Lord  Raym.  593,  who  reports  the  same  case  :  and 
if  an  affirmation  at  the  time  of  sale  be  a  warranty,  I  cannot  feel 
a  distinction  between  the  vendor's  being  in  or  out  of  possession. 
The  thing  is  bought  of  him,  and  in  consequence  of  his  assertion  : 
and  if  there  be  any  difference,  it  seems  to  me  that  the  case  is 
strongest  against  the  vendor  when  he  is  out  of  possession, 
because  then  the  vendee  has  nothing  but  the  warranty  to  rely 
on.  These  cases  then  are  so  far  from  being  authorites  against 
the  present  action,  that  they  show  that,  if  there  be  fraud  or 
deceit,  the  action  will  lie  ;  and  that  knowledge  of  the  falsehood 
of  the  thing  asserted  is  fraud  and  deceit.  Collusion  then  is  not 
necessary  to  constitute  fraud.  In  the  case  of  a  conspiracy, ' 
there  must  be  a  collusion  between  two  or  more  to  support  an 
indictment:  but,  if  one  man  alone  be  guilty  of  an  offence, 
which,  if  practised  by  two,  would  be  the  subject  of  an  indict- 
ment for  a  conspiracy,  he  is  civilly  liable  in  an  action  for 
reparation  of  damages  at  the  suit  of  the  person  injured.  That 
knowledge  of  the  falsehood  of   the  thing  asserted  constitutes 

(rt)  Salk.  210. 


1308  I'ASLEV    V.    I'KKKMAN. 

fraud,  tliou^Mi  tliere  be  no  coUusmjii,  is  I'liither  proved  hy  the 
case  of  Risneij  v.  kSeWy,  Salk.  211,  where,  \\\nn\  a  treaty  for  tlie 
purchase  of  a  house,  the  defendant  fraudulently  atlirnied  that 
the  rent  was  30/.  per  annum  when  it  was  only  20/.  per  annum, 
and  the  plaintiff  had  his  judjjfinent;  for  the  value  of  the  rent  is 
a  matter  which  lies  in  the  jtrivate  knowled<^e  of  the  landlord 
and  tenant,  and  if  they  afliini  the  rent  to  he  more  than  it  is, 
the  ])uri'haser  is  cheated,  and  ()UL,dit  to  have  a  remedy  for  it. 
No  collusion  was  there  stated,  nor  docs  it  ap{)car  that  the 
tenant  was  ever  asked  a  tjuesiion  alioul  the  rent,  and  yet  the 
purchaser  mii^ht  have  ap[)licd  to  him  for  information;  hut  the 
judgment  })roceeded  wholly  upon  the  ground  that  the  de- 
fendant knew  that  what  he  asserted  was  false.  And  by  the 
words  of  the  books  it  seenis  that,  if  the  tenant  had  said  the 
same  thing,  he  also  would  have  been  liable  to  an  action.  If  so, 
that  wouhl  l)e  an  answer  to  the  objection,  that  the  defendant  in 
this  case  had  no  interest  in  the  a.ssertion  wiiich  he  made.  Hut 
I  shall  not  leave  this  point  on  the  di<'tu7n  or  inference  which 
may  be  collected  from  that  case.  If  A.  by  fraud  and  deceit 
cheat  r>.  out  of  1  <•<»()/.,  it  makes  no  difference  to  I^  wliether 
A.,  or  any  other  })crson,  pockets  that  1000/.  He  has  lost  his 
money,  and  if  he  can  lix  fraud  u})on  A.,  reason  seems  to  say 
that  he  has  a  right  to  seek  satisfaction  against  him.  Authori- 
ties are  not  wanting  on  this  point.  1  Roll.  Abr.  i'l,  pi.  7.  If 
the  vendor  attirm  that  the  gooils  are  the  goods  of  a  st range i-, 
his  friend,  and  that  he  had  authority  for  him  to  sell  them,  and 
upon  that  B.  buy  them,  when  in  truth  they  are  the  goods  of 
another,  yet  if  he  sell  them  fraudulently  and  falsely  on  this 
pretence  of  authoiity,  though  he  do  not  warrant  them,  and 
though  it  be  not  averred  that  he  sold  them  knowing  them  to  be 
the  goods  of  a  stranger,  yet  B.  shall  have  an  action  for  tliis 
deceit.  It  is  not  clear  from  this  case,  whether  the  fraud  con- 
sisted in  having  no  authority  from  his  friend,  or  in  knowing 
that  the  goods  belonged  to  another  jjcrson :  what  is  said  at  the 
end  of  the  case  only  proves  that  falsely  and  fraudulently  are 
equivalent  to  knoivingly.  If  the  first  were  the  fact  in  the  case  — 
namely,  that  he  had  no  authority  —  the  case  does  not  apply 
to  this  point ;  but  if  he  had  no  authority  from  his  friend, 
whatever  the  goods  were  sold  for  his  friend  was  entitled 
to,  and  he  had  no  interest  in  them.  But,  however  that 
might  be,  the  next  case  admits  of  no  doubt.     For  in  1  Roll. 


PASLEY    V.    FREEMAN.  1309 

Abr.  100,  pi.  1,  it  was  held,  that  if  a  man  acknowledge  a  fine 
in  my  name,  or  acknowledge  a  judgment  in  an  action  in  my 
name,  of  my  land,  this  shall  bind  me  for  ever ;  and  therefore 
I  may  have  a  writ  of  deceit  against  him  who  acknowledged  it; 
so  if  a  man  acknowledge  a  recognizance,  statute-merchant,  or 
staple.     There  is  no  foundation  for  supposing  that  in  that  case 
the  person  acknowledging  the  fine  or  judgment  was  the  same 
person  to  whom  it  was  so   acknowledged.     If  that  had  been 
necessary  it  would  have  been  so  stated ;  but  if  it  were  not  so, 
he  who  acknowledged  the  fine  had  no  interest  in  it.     Again, 
in  1  Roll.  Abr.  95,  1.  25,  it  is  said,  if  my  servant  lease  my  land 
to  another  for  years,  reserving  a  rent  to  me,  and  to  persuade 
the  lessee  to  accept  it,  he  promise  that  he  shall  enjoy  the  land 
without  incumbrances;    if   the  land  be   incumbered,   &c.,  the 
lessee  may  have  an  action  on  the  case  against  my  servant,  be- 
cause he  made  an  express  warranty.     Here  then  is  a  case  in 
which  the  party  had  no  interest  whatever.     The  same  case  is 
reported  in  Cro.  Jac.  425,  but  no  notice  is  taken  of  this  point ; 
probably  because  the  reporter  thought  it  immaterial  whether 
the  warranty  be  by  the  master  or  servant.     And  if  the  war- 
ranty be  made  at  the  time  of  the  sale  or  before  the  sale,  and 
the  sale  is  upon  the  faith  of  the  warranty,  I  can  see  no  dis- 
tinction between  the  cases.      The  gist  of  the   action  is  fraud 
and  deceit,  and  if   that  fraud  and  deceit  can  be  fixed  by  evi- 
dence  on  one   who   had  no  interest  in  his  iniquity,  it  proves 
his  malice  to  be  the  greater.     But  it  was  objected  to  this  dec- 
laration, that  if  there  were  any  fraud,  the  nature  of  it  is  not 
stated ;  to  this  the  declaration  itself  is  so  direct  an  answer  that 
the  case  admits  of  no  other.     The  fraud  is,  that  the  defendant 
procured  the  plaintiffs  to  sell  goods  on  credit  to   one   whom 
they  would  not  otherwise  have  trusted,  by  asserting  that  which 
he  knew  to  be  false.     Here  then  is  the  fraud,  and  tlie  means 
by  which  it  was  committed ;  and  it  was  done  with  a  view  to 
enrich  Falch  by  impoverishing  the  plaintiffs,  or,  in  other«  words, 
by  cheating  the  plaintiffs  out  of  their  goods.     The  cases  which 
I  have  stated,  and  Sid.  14G,  and  1  Keb.  522,  prove  that  the 
declaration  states    more    than   is   necessary ;    for  fraudulenter 
without  sciens,  or  scieiis  without  fraudulenter^  Avould  be  suffi- 
cient to  support  the  action.     But,  as  Mr.  J.   Twisden  said  in 
that  case,  the  fraud  must  be  proved.     The  assertion  alone  will 
not  maintain  the  action ;  but  the  plaintiff  must  go  on  to  prove 


]:510  I'A.--L1.\     \.     1  Kl.hMAN. 

tliiit  it  was  false,  and  that  the  defewlant  knew  it  to  he  go:  by 
what  means  that  [Hoof  is  to  Ijo  niatle  ont  in  t'vi<U'nci'  nofil  not 
bu  stated  in  tlie  deelaiation.  Some  general  arguments  were 
urgi'il  at  tlie  bar,  to  shmv  that  misehiefs  and  inconveniences 
would  arise  il'  this  action  were  sustained:  for  if  a  man,  who  is 
asked  a  (question  respecting  another's  responsibility,  hesitate 
or  is  silent,  he  blasts  the  cliaiacter  of  the  tradesman  :  and  if 
he  say  that  he  is  insolvent,  he  may  not  Ixj  able  to  prove  it. 
Hut  let  us  see  what  is  contended  for:  it  is  nothing  less  than 
that  a  man  may  assert  that  whidi  lie  knows  to  l)e  false,  and 
thereby  do  ;m  everlasting  injury  to  his  iicigliboMi-,  and  yet  not 
In-  answerabh'  for  it.  'I'his  is  as  ri-pugnaiit  to  hiw  as  it  is  to 
morality.  Then  it  is  sai<i.  that  the  phiintiffs  liad  no  rigiit  to 
ask  the  (|Uestion  of  thr  tli-ffiidant.  I»iit  I  do  not  agree  in 
that;  for  the  [)laintifTs  had  an  interest  in  knowing  what  the 
credit  of  Falch  was.  It  was  not  the  impiiry  of  idle  curiosity, 
but  it  wjis  to  govern  a  very  extensive  concern.  The  defendant 
undoubtedly  had  his  option  to  give  an  answer  to  the  (piestion, 
or  not;  but  if  he  gave  none,  or  .said  lie  did  not  know,  it  is 
impossible  for  any  court  of  justice  to  ado[)t  tlie  possible  in- 
ferences of  a  suspicious  niiml  as  a  ground  for  grave  judgment. 
All  that  is  re(|uired  of  a  person  in  the  defi'ndant's  situation 
is,  that  he  shall  give  no  answer,  or  that  if  he  do,  he  shall  answer 
according  to  the  truth  as  far  as  he  knows.  The  reasoning  in 
the  case  id'  C'w/'/k  v.  Barnanh  which  was  cited  by  the  plaintilY's 
counsel,  is,  I  think,  very  applicable  to  this  part  of  the  case.  If 
the  answer  import  in.solveney,  it  is  not  necessary  that  the  <le- 
fendant  should  Ix'  able  to  prove  that  insolvency  to  a  jury  ;  for 
the  law  protects  a  man  in  giving  that  answer  if  he  does  it  in 
eonlidence  and  without  malice.  No  action  can  be  maintained 
against  him  for  giving  such  an  answer,  unless  express  malice 
can  be  proved.  From  the  circumstance  of  the  law  giving  that 
protection,  it  seems  to  follow,  as  a  necessary  conse(iuence,  that 
the  law  not  only  gives  sanction  to  the  question,  but  recpiires 
that,  if  it  be  answered  at  all,  it  shall  be  answered  honestly. 
There  is  a  case  in  the  books,  which,  though  not  much  to  be 
relied  on,  yet  serves  to  show  that  this  kind  of  conduct  has 
never  been  thought  innocent  in  Westminster  Hall.  In  R.  v. 
Gunston,  1  Str.  583,  the  defendant  was  indicted  for  pretending 
that  a  person  of  no  reputation  was  Sir  J.  Thornycraft,  whereby 
the  prosecutor  was  induced  to  trust  him  ;  and  the  court  refused 


PASLEY   V.    FREEMAN.  1311 

to  grant  a  certiorari.,  unless  a  special  ground  were  laid  for  it. 
If  the  assertion  in  that  case  had  been  wholly  innocent,  the 
court  would  not  have  hesitated  a  moment.  How  indeed  an 
indictment  could  be  maintained  for  that  I  do  not  well  under- 
stand; nor  have  I  learnt  Avhat  became  of  it  (a).  The  objection 
to  the  indictment  is,  that  it  was  merely  a  private  injury  ;  but 
that  is  no  answer  to  an  action.  And  if  a  man  will  wickedly 
assert  that  which  he  knows  to  be  false,  and  thereby  draws  his 
neighbour  into  a  heavy  loss,  even  though  it  be  under  the 
specious  pretence  of  serving  his  friend,  I  say  ausis  talibus  istis 
non  Jura  subserviunt. 

Ashurst,  J.  The  objection  in  this  case,  which  is  to  the  third 
count  in  the  declaration  is,  that  it  contains  only  a  bare  assertiouy 
and  does  not  state  that  the  defendant  had  any  interest.,  or  that 
he  colluded  with  the  other  party  who  had.  But  I  am  of  opin- 
ion that  the  action  lies,  notwithstanding  this  objection.  It 
seems  to  me  that  the  rule  laid  down  by  Croke,  J.,  in  Bayley  v. 
Merrel  (&),  is  a  sound  and  solid  principle  —  namely,  that  fraud 
without  damage,  or  damage  without  fraud,  will  not  found  an 
action ;  but  where  both  concur,  an  action  will  lie.  The  prin- 
ciple is  not  denied  by  the  other  judges,  but  only  the  application 
of  it,  because  the  party  injured  there,  who  was  the  carrier,  had 
the  means  of  attaining  certain  knowledge  in  his  own  power  — 
namely,  by  weighing  the  goods ;  and  therefore  it  was  a  foolish 
credulity  against  which  the  law  will  not  relieve.  But  that  is 
not  the  case  here,  for  it  is  expressly  charged  that  the  defend- 
ant kjieiv  the  falsity  of  the  allegation,  and  which  the  jur}^  have 
found  to  be  true  ;  but  non  constat  that  tlie  plaintiffs  knew  it» 
or  had  any  means  of  knowing  it,  but  trusted  to  the  veracity 
of  the  defendant.  And  many  reasons  may  occur  why  the  de- 
fendant might  know  that  fact  better  than  the  plaintiffs :  as  if 
there  had  before  this  event  subsisted  a  partnership  between 
him  and  Falch,  which  had  been  dissolved:  but  at  any  rate  it 
is  stated  as  a  fact  that  he  knew  it.  It  is  admitted  that  a  fraud- 
ulent affirmation,  when  the  party  making  it  has  an  interest, 
is  a  ground  of  action ;  as  in  Risney  v.  Selby  (ji).,  which  was  a 
false  affirmation  made  to  a  purchaser  as  to  the  rent  of  a  farm 
which  the  defendant  was  in  treaty  to  sell  to  him.  But  it  was 
argued  that  the  action  lies  not,  unless  where  the  party  making 

(rt)  The  indictment,  I  suppose,  must  (h)  3  Bulst.  95. 

have  been  for  conspiracy.  (c)  Salk.  211. 


1,'^12  PASLKY    V.    FUKKMAN. 

it  lius  an  interest,  or  colhulcs  with  <>\\t'  ulm  has.  I  do  not 
recollect  that  any  case  was  cited  which  |>iovfs  sncli  a  position; 
but  if  there  were  any  such  to  he  found,  I  should  not  ht-sitate 
to  say  that  it  could  not  be  law;  for  I  have  so  preat  a  veneration 
for  thi'  law  as  to  suj)i)Ose  that  nothing  can  b«'  law  which  is  not 
founded  in  common  sense  or  common  honesty.  For  the  <;ist 
of  tlu!  action  is  the  injuri/  tfonc  to  the  plaintiff,  and  not  whether 
the  defendant  meant  to  be  a  j^ainer  by  it:  what  is  it  to  the 
plaintilT  whether  the  defendant  was  or  was  not  to  .<,Min  by  it? 
the  injury  to  him  is  the  same.  Ami  it  should  seem  that  it 
ou^lit  more  emphatically  to  lie  against  him,  as  the  malice  is 
more  diabolical,  if  he  had  not  the  temptation  of  i^ain.  For  the 
same  reason,  it  cannot  be  necessary  that  the  defendant  should 
collude  with  one  who  has  an  interest.  Hut  if  collusion  were 
necessary,  there  seems  all  the  reason  in  the  world  to  suppose 
both  interest  and  collusion  froni  the  nature  of  the  act:  for  it  is 
to  be  hoped  that  there  is  not  to  l)e  found  a  dispositi«)n  so  diabol- 
ical as  to  prompt  an\  man  to  injure  another  without  benetitiui^ 
hims»'lf.  liut  it  is  said,  that  if  this  ])e  determined  to  l)e  law, 
any  man  may  have  an  action  broui,dit  aijainst  him  for  telling 
a  lie  by  the  crediting  of  which  another  happens  eventually  to 
be  injured.  But  this  constMjUence  by  no  means  follows:  foi-  in 
order  to  make  it  actionable,  it  must  be  accompanied  with  the 
circumstances  averred  in  this  count,  namely,  that  the  defend- 
ant, "intending  to  deceive  and  defraud  the  plaintilTs,  did 
deceitfidly  encourage  and  persuade  them  to  do  the  act,  and 
for  that  purpose  made  the  false  aftirmati(»n,  in  consecjuence 
of  whii  h  they  did  the  act."  Any  lie  accompanied  with  those 
circumstances,  I  should  clearly  hold  to  be  the  subject  of  an 
action  ;  but  not  a  mere  lie  thrown  out  at  random  without  any 
intention  of  hurting  anybody,  but  which  some  person  was 
foolish  enough  to  act  upt)n,  for  the  quo  animo  is  a  great  part 
of  the  gist  of  the  action.  Another  argument  which  has  been 
made  use  of  is,  that  this  is  a  ne\v  case,  and  that  there  is  no 
precedent  of  such  an  action.  Where  cases  are  new  in  their 
principle,  there  I  admit  that  it  is  necessary  to  have  recourse 
to  legislative  interposition  in  order  to  remedy  the  grievance ; 
but  where  the  case  is  only  new  in  the  instance,  and  the  only 
question  is  upon  the  application  of  a  principle  recognized  in  the 
law  to  such  new  case,  it  will  be  just  as  competent  to  courts 
of  justice  to  apply  the  principle  to  any  case  which  may  arise 


PASLEY    V.    FREEMAN.  1313 

two  centuries  hence  as  it  was  two  centuries  ago ;  if  it  were  not, 
we  ought  to  blot  out  of  our  law-books  one-fourth  part  of  the 
cases  that  are  to  be  found  in  them.  The  same  objection  might, 
in  my  opinion,  have  been  made  with  much  greater  reason  in 
the  case  of  Coggs  v.  Barnard ;  for  there  the  defendant,  so  far 
from  meaning  an  injury,  meant  a  kindness,  though  he  was  not 
so  careful  as  he  should  have  been  in  the  execution  of  what  he 
undertook.  And,  indeed,  the  principle  of  the  case  does  not, 
in  my  opinion,  seem  so  clear  as  that  of  the  case  now  before  us, 
and  yet  that  case  has  always  been  received  as  law.  Indeed, 
one  great  reason,  perhaps,  why  this  action  has  never  occurred, 
may  be  that  it  is  not  likely  that  such  a  species  of  fraud  should 
be  practised  unless  the  party  is  in  some  way  interested.  There- 
fore, I  think  the  rule  for  arresting  the  judgment  ought  to  be 
discharged. 

Lord  Kenyan,  C.  J.  I  am  not  desirous  of  entering  very  fully 
into  the  discussion  of  this  subject,  as  the  argument  comes  to  me 
quite  exhausted  by  what  has  been  said  b}^  my  brothers.  But 
still  I  will  say  a  few  words  as  to  the  grounds  upon  which  my 
opinion  is  formed.  All  laws  stand  on  the  best  and  broadest 
basis  which  go  to  enforce  moral  and  social  duties,  though  in- 
deed it  is  not  every  moral  and  social  duty  the  neglect  of  which 
is  the  ground  of  an  action.  For  there  are  some,  which  are 
called  in  the.  civil  law  duties  of  imperfect  obligation,  for  the 
enforcing  of  which  no  action  lies.  There  are  many  cases  where 
the  pure  effusion  of  a  good  mind  may  induce  the  performance 
of  particular  duties,  which  yet  cannot  be  enforced  by  municipal 
laws.  But  there  are  certain  duties,  the  non-performance  of 
which  the  jurisprudence  of  this  country  has  made  the  subject 
of  a  civil  action.  And  I  find  it  laid  down  by  the  Lord  C.  B. 
Comgns  (a),  that  "  an  action  upon  the  case  for  a  deceit  lies 
when  a  man  does  any  deceit  to  the  damage  of  another."  He 
has  not,  indeed,  cited  any  authority  for  this  opinion ;  but  his 
opinion  alone  is  of  great  authority  ;  since  he  was  considered  by 
his  contemporaries  as  the  most  able  lawyer  in  Westminster  Hall. 
Let  us,  however,  consider  whether  that  proposition  is  not  sup- 
ported by  the  invariable  principle  in  all  the  cases  on  this  subject. 
In  3  Bulstr.  95,  it  was  held  by  Croke,  J.,  that  "  fraud  without 
damage,  or  damage  without  fraud,  gives  no  cause  of  action :  but 
where  these  two  do  occur,  there  an  action  lieth."     It  is  true,  as 

(a)  Com.  Dig.  Tit.  "  Action  upon  the  case  for  a  deceit."     A.  1. 


l:;i}  I'ASLKV    V.    FKKKMAN. 

luis  heen  already  oKserved,  that  the  judfjes  were  of  opinion  in 
that  case  that  the  aetion  did  not  lie  <tn  other  grounds.  Hut 
tr()usi(h'i*  what  those  t^rouuds  were.  I)oili/rrli/i/f,  .].,  said,  "If 
we  shall  ^nvt-  way  t<»  tiiis,  tiieii  evtMV  canit  r  would  have  an 
action  upon  the  case:  hut  he  sliall  not  have  aiiv  action  for  this, 
l)ecause  it  is  niendy  Iilx  oirn  ilffiiiilt  that  he  ditl  not  weii,di  it." 
Tudouhtedly  where  the  coninion  prudence  and  ciiution  of  nian 
are  sulhcient  to  iruard  him,  the  law  will  not  ]>rotect  him  in  his 
ne«rligence  (a).  And  in  that  case,  as  reported  in  Cro.  Jac.  liSH, 
the  neglij,'enee  of  the  plaintitT  himself  was  the  cause  for  which 
the  court  held  that  the  action  was  not  niaintainahle.  Then  how 
<loes  the  principle  of  that  case  api»ly  to  the  present?  There 
are  many  situations  in  life,  and  particularly  in  the  commercial 
world,  where  a  man  c:iniiot  hy  any  dili<;ence  inform  himself  of 
the  dcLTree  of  cirdit  which  ouj^dit  to  he  Ljiven  to  the  persons 
with  whom  he  deids:  in  which  cases  he  nnist  apply  to  those 
whose  sources  of  intellii^'ence  enahle  them  to  i^ivc  that  infoi- 
mation.  The  law  of  prudence  leads  him  to  apply  to  them,  an<I 
the  law  of  morality  oui^ht  to  imluie  them  to  j^ive  the  infor- 
mation re(iuired.  In  the  case  of  Hulstrode,  the  carrier  mit^ht 
have  wei<jfhed  the  goods  himself  ;  hut  in  tliis  ease  the  plaintitTs 
had  no  means  of  knowing  the  state  of  Falch's  credit,  hut  hy  an 
application  to  his  neighhours.  The  same  ohservation  may  he 
made  to  the  cases  cited  hy  the  defendant's  counsel  respecting 
titles  to  real  projierty.  Foi'  a  person  does  not  have  recourse  to 
common  conversations  to  know  the  title  of  an  estate  which  he 
is  ahout  to  purchase:  hut  he  may  inspect  the  title  deeds:  and 
he  does  not  use  connnon  prudence  if  he  rely  on  any  other  secur- 
ity. In  the  case  of  lUdstrode,  the  court  seemed  to  consider 
that  damimnt  and  injuria  are  the  grounds  of  this  action  ;  and 
they  all  admitted  that,  if  they  had  existed  in  that  case,  the 
action  would  have  lain  there  ;  for  the  rest  of  the  judges  did  not 
controvert  the  opinion  of  Croke.,  J.,  but  denied  the  application 
of  it  to  that  particular  case.  Then  it  was  contended  here  that 
the  action  cannot  be  maintained  for  telling  a  naked  lie ;  but 
that  proposition  is  to  be  taken  auh  modo.  If,  indeed,  no  injury 
is  occasioned  by  the  lie  it  is  not  actionable  :  but  if  it  be  attended 
with  a  damage,  it  then  becomes  the  subject  of  an  action.  As 
calling  a  woman  a  whore,  if  she  sustain  no  damage  by  it,  it  is 
not  actionable :  but  if  she  lose  her  marriage  by  it,  then  she  may 

(o)  Ou  this  principle  (lepeiul.s  Pripstleij  v.  Foicler,  3  M.  &  Vr.  1. 


PASLEY   V.    ^HEEMA^■.  1315 

recover  satisfaction  in  damages.  But  in  this  case  the  two 
grounds  of  the  action  concur :  here  are  both  the  damnum  et 
injuria.  The  pLaintiffs  applied  to  the  defendant,  telling  him 
that  they  were  going  to  deal  Avith  Falch,  and  desired  to  be  in- 
formed of  his  credit,  when  the  defendant  fraudulently,  and 
knowing  it  to  be  otherwise,  and  with  a  design  to  deceive  the 
plaintiffs,  made  the  false  affirmation  which  is  stated  on  the  record, 
by  wliich  they  sustained  a  considerable  damage.  Then  can  a 
doubt  be  entertained  for  a  moment  but  that  this  is  injurious  to 
the  plaintiffs  ?  If  this  be  not  an  injur}',  I  do  not  know  how  to 
define  the  word.  Then,  as  to  the  loss,  this  is  stated  in  the  dec- 
laration, and  found  by  the  verdict.  Several  of  the  words  stated 
in  this  declaration,  and  particularly  "•fraudideriter,''  did  not 
occur  in  several  of  the  cases  cited.  It  is  admitted  that  the  de- 
fendant's conduct  was  highly  immoral  and  detrimental  to  soci- 
ety. And  I  am  of  opinion  that  the  action  is  maintainable,  on 
the  grounds  of  deceit  in  the  defendant  and  injury  and  loss  to 
the  plaintiffs. 

Rule  for  arresting  the  judgment  discharged. 


As  to  the  effect  produced  by  this  celeln-ated  decision  on  tlie  operation  of 
the  Statute  of  Frauds,  and  by  st.  9  G.  4,  c.  14,  sec.  6,  upon  the  class  of  cases 
of  which  this  is  tlie  leading  one,  see  the  note  to  Chandelor  v.  Lopus,  ante,  vol. 
i.  It  is  sliown  in  the  same  note  from  the  cases  of  Foster  v.  Charles,  6  Bing. 
396  ;  7  Bing.  lOS  ;  Corbet  v.  Broione,  8  Bing.  133 ;  and  PolMll  v.  Walter,  3  B.  & 
Ad.  122,  that,  in  order  to  prove  such  fraud  as  will  sustain  this  action,  it  is 
only  necessary  to  show  that  what  the  defendant  asserted  was  false  within  his 
own  knowledge,  and  occasioned  damage  to  the  plaintiff;  a  point  which  had 
been  much  mooted  in  Hat/craft  v.  Creasy,  2  East,  92;  Taylor  v.  Ashton,  11  M. 
&  W.  401.  Cran-shay  v.  Thompson,  4  M.  &  Gr.  387,  Cressell,  J.,  thus  lays 
down  the  rule,  "  The  cases  may  be  considered  to  establisli  tlie  principle,  that 
fraud  in  law  consists  in  Ivuowingly  asserting  that  wliich  is  false  in  fact,  to 
the  injury  of  another."  See  also  Keats  v.  TTie  Earl  of  Cadoyen,  10  C.  B.  591 
\_Behn  v.  Kemble,  7  C.B.  N.  S.  260,  and  Evans  v.  Edmonds,  13  C.  B.  777]. 

A  singular  case  occurred  some  time  ago  in  the  Court  of  Exchequer,  in 
which  the  majority  of  the  judges  decided  that  a  contract  made  b}^  an  agent 
in  behalf  of  his  principal,  and  into  which  the  contractee  was  induced  to  enter 
by  a  representation,  wliich,  thougli  false  within  the  Icnowledge  of  the  prin- 
cipal, was  not  so  witliin  that  of  tlie  agent,  was  not  void  on  the  ground  of 
fraud;  for  it  was  argued  there  is  no  fi'aud  in  tlie  agent,  since  he  tliought  he 
was  telling  the  truth,  nor  any  in  the  principal,  since  he  did  not  malve  the  rep- 
resentation. Lord  Abinger,  C.  B.,  thought,  upon  the  other  hand,  that  the 
contract  being  procured  by  misrepresentation  must  be  tainted  with  legal  if 
not  moral  fraud.  The  case  was  Cornfoot  v.  Fowke,  6  M.  &  W.  358,  [and  the 
facts  were  as  follows  :  —  The  plaintiff  (the  owner  of  a  ready-furnished  house) 


131*»  I'ASLKV    \.    lltKKMAN. 

had  riiiploycd  nn  nijpnt  to  lot  it  for  liim,  and  tlu-  iim-iit  had  lot  It  to  tho  dofond- 
uiil.  Tlio  udjoiiiiiij;  lioijso  was  usod  as  a  brotliol.  and  this  faot  was  known  to 
tho  phiintiir,  bnt  not  to  tiio  a;;ont.  Before  the  a!;r«'oinont  to  take  tlio  Iiouhc 
was  sifjnod  i)y  tlie  dofoiulant,  lie  had  asked  tlio  a;;ent  wliotlior  there  was  any 
objection  to  the  house,  and  ho  had  answered  that  there  was  not.  The  aetion 
was  broii;;ht  ajralnst  the  defendant  f«)r  the  non-porfonnanee  of  his  agreement, 
and  lie  pleaded  that  he  hail  boon  Indneed  to  enti-r  Into  the  eontrii<-t  by  the 
fraud  of  the  i)lalnliir.]  This  ease  is  by  no  means  universally  admitted  as 
law,  and  probably  will  bo  hereafter  questioned.     [Sv^'  poal,  p.  !•'.•] 

Aecordinyly,  few  eases  have  excited  more  animated  discussion;  In  the 
eourse  of  which  the  <|uo>tion  seems  to  have  been  —  Does  loiral  without  ujoral 
fraud  [or  perhaps  more  accurately.  May  a  misrepresentation  be  fraudideiit  in 
law  so  as  tf)J  invttlidatf  tt  ctmlnirl,  or/i/r/iKsA  i/ntnit'l  of  nrtinti  [without  moral 
fraud?].  In  the  ca.sc  of  Fulhr  v.  W'ilsnn,  ;J  C^.  11.  .'iH,  which  was  an  action 
on  the  case  for  a  false  representation,  tlie  facts  were  assumed  to  raise  the 
<|uestion  before  referre«l  to,  anil  the  Court  of  l^uoon's  Hench,  In  a  considered 
judiiuiout,  diirorod  from  the  view  taken  by  the  nuijority  of  the  Court  i>f  K.\- 
olu'ipior,  in  the  rase  of  Conifoot  v.  Foirir,  adoptini;  the  opinion  of  the  Chief 
Haron  \i|)on  that  (|Uostion,  ••  Lord  .Vbln^or  maintainotl."  says  Lord  Deiunan, 
C.  .1..  dolivcrini;  tho  jud;;mont  of  the  court,  ••  and  surely  not  without  reason, 
that  there  was  some  moral  fraud  in  the  conduet  of  both,  the  principal  con- 
cealluf;  a  fact  which  made  his  house  utterly  tmtlt  for  tho  purpose  for  which 
he  was  lettluf?  It;  the  agent  stating  a  falsehood,  which,  of  course  he  could 
not  know  to  be  tnie,  even  If  he  believed  It;  we  do  not,  however,  take  this 
ground:  we  ado|)t  the  other  proposition  of  the  Chief  Haron,  namely,  tfi)it 
tchfthrr  thin-  irns  innnil  J'riiiiil  or  nut.  if  the  purchaser  was  aetiudly  deoelved 
In  his  bargain,  the  law  will  relieve  him  from  it.  Wo  think  the  principal  and 
his  agent  are  for  this  purpose  completely  identitled;  ami  that  thr  ijiifstinn  in, 
not  what  tras  jtassimi  in  thr  mind  i>f  rithi'r,  hut  irhi-thir  thf  purchaspr  iras  in 
fart  decrivfil  loj  them,  nr  either  of  thim."  The  facts  of  the  case  wore  after- 
wards by  consent  and  leave  of  the  court,  stated  in  a  special  verdict,  and  the 
judgment  was  reversed  in  error,  but  on  a  dlttorent  point;  .see  the  report  3  Q. 
B.  fi8  and  1009. 

Meanwhile,  the  Court  of  Exchoquor,  in  Mums  v.  I/ii/irurth,  in  .M.  &  \V.  147 
(Lord  .Vbingor  still  dissentient),  and  in  'J'ai/lor  v.  Ashton,  11  .M.  &  W.  401, 
reiterated  tiioir  previous  opinion  as  delivered  in  Comfoot  v.  Foirke,  whilst 
the  Court  of  (.Queen's  Bench,  soon  afterwards,  in  tho  case  of  Ktans  v.  Collins, 
5  Q.  B.  804,  adhered  to  their  former  judgment  upon  this  question.  That  wa.s 
an  action  on  tho  case  brought  by  the  plaintitt',  late  Shoritt'of  London,  against 
the  defendants,  attorneys  for  one  Tower,  who  had  sued  John  Wright  for  a 
debt,  and  obtained  execution  against  him,  for  falsely  representing  another 
John  Wright  (who  was  then  in  custody  of  the  plaintifl"),  to  be  the  defendant, 
in  that  action,  though  they  kneio  the  contrary.  By  which  false  representation 
the  plaintitt'  was  induced  to  detain  the  wrong  person,  Avho  thereupon  brought 
an  action  against  him,  and  therein  recovered  (by  way  of  compromise)  10/., 
in  respect  of  the  unlawful  imprisonment.  To  this  declaration.  Not  Guilty 
was  pleaded;  and  also,  3rdly.  That  tho  defendants  had  reasonable  and  prob- 
able cause  to  believe,  and  did  believe  the  person  whom  they  pointed  out,  to 
be  the  real  defendant.  Upon  this  third  plea  the  defendants  had  a  verdict, 
but  the  court  held  the  allegation  in  the  declaration  of  the  knoioledge  of  the 
defendants,  as  well  as  the  issue  upon  the  third  plea,  to  he  immaterial,  and 
gave  judgment  for  the  plaintiff  upon  that  issue,  now  obstante  veredicto. 


PASLEY    V.    FREEMAN.  1317 

Upon  a  writ  of  error,  however,  the  Exchequer  Chamber  (5  Q.  B.  820)  held 
the  allegation  of  the  scienter  in  the  declaration  and  the  issue  on  the  third 
plea,  to  be  material;  and,  distinguishing  the  case  from  that  of  Humphreys  v. 
Pratt,  5  Bligli,  N.  S.  154  (upon  the  authority  of  which  the  judgment  in  the 
court  below  had  partly  proceeded),  as  being  the  case  of  a  direction  to  a 
mandatory  or  agent  and  not  a  mere  representation,  reversed  the  decision  of 
the  Court  of  Queen's  Bench.  See  also  Shrewsbury  v.  Blount,  2  M.  &  G.  475. 
and  Rau-lings  v.  Bell,  1  C  B.  951,  where  the  Court  of  Common  Pleas  held 
that  injury  caused  bj'  a  statement  false  in  fact,  but  not  so  to  the  knoAvledge 
of  the  party  making  it,  or  made  with  intent  to  deceive,  .would  not  support 
an  action.  In  the  case  of  Ormrocl  v.  Hitth,  14  M.  &  W.  651,  the  Exchequer 
Chamber  again  affirmed  the  same  principle ;  and  as  the  judges  of  the  Queen's 
Bench  were,  it  is  apprehended,  parties  to  this  latter  judgment,  the  question 
may  now,  perhaps,  be  considered  as  settled,  especiallj'  as  in  the  more  recent 
case  of  Barley  v.  Walford,  15  L.  J.  Q.  B.  369;  9  Q.  B.  197,  the  Court  of 
Queen's  Bench  acquiesce  distinctly  in  the  propriety  of  the  doctrine,  that 
moral  fraud  in  a  representation  is  essential,  in  order  there1)y  to  invalidate  a 
contract,  or  furnish  ground  of  action ;  so  that  the  result  of  the  recent  elabo- 
rate discussion  of  this  subject  would  seem  to  leave  the  law  very  much  as  it 
was  settled  by  the  principal  case,  and  that  of  Haycraft  v.  Creasy,  2  East,  92, 
[accord.  Childers  v.  Wooler,  2  E.  &  E.  287,  a  case  very  similar  in  its  facts  to 
Evans  v.  Collins. 

The  supposed  distinction  between  legal  and  moral  fraud  has  been  the 
source  of  some  confusion.  There  is  no  such  thing  as  fraud  into  which  some 
degree  of  moral  obliquity  does  not  enter.  Accordingly  (subject  to  what  will 
appear  hereafter  as  to  the  responsibility  of  an  innocent  principal  for  the 
fraud  of  his  agent),  an  action  of  deceit  will  not  lie  for  a  perfectly  innocent 
misrepresentation,  for  such  a  representation  is  not  fraudulent.  On  the  other 
hand,  a  verj^  slight  degree  of  moral  obliquitj^  may  suffice  to  render  a  repre- 
sentation fraudulent  in  contemplation  of  law.]  It  is  not  necessary  that  it 
should  be  false  to  the  knowledge  of  the  party  making  it;  if  [it  be]  untrue  in 
fact,  and  not  believed  to  be  true  by  the  party  making  it,  [or  made  recklessly 
without  any  knowledge  on  the  subject]  and  for  [the  purpose  of  inducing  an- 
other person  to  act  upon  it,  an  action  may  be  maintained  thereon  by  the  per- 
son who  has  been  induced  to  act  upon  it.]  See  the  judgment  in  Taylor  v. 
Ashton,  11  M.  &  W.  415  (where  at  the  7th  line  from  the  bottom  of  the  page 
415,  the  word  "  ti-ue  "  is  printed  for  "  untrue").  Jarrett  v.  Kennedy,  6  C.  B. 
319  ;  [Evans  v.  Edmunds,  13  C.  B.  777,  per  Maule,  J. ;  Reese  Biver  Silver  Min- 
ing Co.  V.  Smith,  L.  R.  4  H.  L.  79,  per  Lord  Cairns;  Hart  v.  Swaine,  7  Ch.  D. 
42;  Eaglesfield  v.  Lord  Londonderry,  4  Ch.  D.  693,  and  see  note  to  Chandelor 
V.  Lopus,  ante,  vol.  i.]  The  purpose  is  essential.  Thorn  v.  Bigland,  8  Exch. 
725 ;   [Behn  v.  Kemble,  7  C.  B.  N.  S.  260. 

For  some  pointed  observations  on  the  impropriety  of  the  expression  legal 
fraud,  see  per  Bramwell,  L.  J.,  Weir  v.  Bell,  3  Ex.  D.  238.  See  also  Joliffe  v. 
Baker,  11  Q.  B.  D.  255;  52  L.  J.  Q.  B.  609.  Still,  as  those  facts  which  the 
law  regards  as  sufficient  to  support  an  action  for  deceit  need  not  necessarily 
amount  to  what  in  popular  language  would  be  called  fraud,  the  expression  is 
a  convenient  one  whereby  to  indicate  the  legal  as  distinguished  from  the 
popular  notion  of  fraud. 

As  to  what  amounts  to  a  misrepresentation,  see  Ward  v.  Hohbs,  3  Q.  B.  D. 
150;  47  L.  J.  Q.  B.  90,  affirmed  4  App.  Cas.  13;  48  L.  J.  Q.  B.  281,  where  it 
was  held  that  the  fact  of  exposing  pigs  for  sale  in  the  open  market  by  a  per- 


1^18  I'ASLKV    V.    t'KKK.MAN. 

son  ^vho  knew  that  tlu-y  woro  allV'ctod  with  a  contajfloun  disease  was  n«»t  xuf- 
iK-ic'iit  proof  of  a  fraiuluk'Ht  rfpn-soiitatlori. 

Tlie  iloctrine  tliat  moral  fraud  ii>  a  n  pri'sontatioM  Is  iifci-sHury  to  invalidate 
a  fontract  or  furnish  ^jjround  of  anion  rannol  at  all  In-  i-xlrndid  to  tlioMe 
cases  in  which  the  representation  expressly  or  impliedly  fonns  part  of  the 
contract  lietween  the  parties,  a.s  cases  of  insurance,  (»r  the  llku.  Se<s  the 
judiriiicnt  of  Baron  I'arke,  in  Moiim  v.  Ilfijwurth,  10  M.  &  W.  157. 

As  u>  avi-rments  of  fraud  in  cases  where  It  was  not  essential  to  the  cause 
of  action,  see  tlie  jutl^menl  of  Haron  I'arke  in  Amlirsnn  v.  Thornton,  H  Kxch. 
4L'.S.  and  the  juditnient  in  Strinffn  v.  Lord  ('h>lms/.>ril,  ',  11.  &  N.  '.•20.  1)21.] 

It  will  l)e  observed  that  the  al)ove  discussion  tloes  not  Involve  the  whole  of 
the  doctrim;  proniuli;ated  tiy  the  nuijority  of  the  court  in  ('nrnfunl  v.  Fntrke  : 
so  far  as  tliat  iloctrine  draws  a  distinction  between  the  knowie»l;;e  of  the 
principal  and  that  of  the  a^ent,  and  re(|uires  that  the  fraud  and  the  statement 
should  be  those  uf  the  same  Inillvidual,  It  Is  still  doubted,  and  may  !;ive  rise  to 
future  discussion.  See  Wilde  v.  (•ihnoH,  1  H.of  L.  Cases,  COo;  (rraiU  v.  A'or- 
ir,i,j,  10  V.  ».  i>r>r>;  I/otnird  V.  Tiirker,  1  B.  &  A.  712.  [See  also  Tht-  yntionnl 
Kxrhiinijf  Co.  <>/  (ihixijinr  v.  Itrnr,  2  Mac<iueen,  11.  of  L.  C.  lo:i,  in  which 
case  some  ol)servatii>ns  were  nuule  l)y  the  i»eers  who  took  part  in  that  decision 
wliicli  throw  mucli  liuht  upon  the  principle  of  (',irii/i<i,t  v.  FmrHc.  ••  In  Cnrn- 
fiiiit  v.  /'oir/lc,"  .suid  the  Lord  (hancellor  (  I.onl  ("ranworth ).  ••  the  plea  was 
that  the  defendant  luid  l)een  intiuce<l  to  enter  into  the  a-^reenu'Ut  sued  on  by 
the  fraud  and  covin  of  the  plaintitf.  The  evitlence  proveil  nothin};  to  sup- 
port tliat  plea;  for  the  plalntltV  ha*l  merely  put  the  house  into  the  hands  of 
an  asrent  to  be  let  at  a  stlpulatetl  rent.  lie  had  neither  himself  stated,  nor 
atitliorised  the  ajient  to  state,  anythinij  false  or  deceptive.  The  court  held 
that  the  plea  was  not  made  otit  by  evidence,  widi-h  merely  showed  the  ajjent 
to  have  stated  (what  he  believed  to  be  true),  namely,  that  there  was  no  objec- 
tion attached  to  the  house."  .\nd  Lord  St.  Leonards,  after  referrinj;  to  the 
distinction  betwci-n  fraud  and  inisn-prcsentation.  and  statin;;  that  it  was  not 
ilenied  in  the  judirment  in  ('onijnot  v.  Finrkc,  as  he  understood  it,  that  the 
principal  would  have  been  responsible  if  he  had  einployetl  an  iirnorant  ajient 
for  the  purpose  of  concealiufj  a  fact  material  to  the  value  of  the  property, 
proceeded  as  follows:  "  But  I  should  take  the  liberty  of  going  a  jjood  deal 
further.  T  should  say  that  if  in  that  case  fraud  had  not  been  alleged,  but  it 
liad  l)een  \mt  ui>on  misrepresentation,  and  the  fact  was.  that  a  man.  knowing 
that  there  is  so  serious  a  nuisance  aH'ecting  a  house  as  to  tliminisli  its  value 
in  sndi  a  way  that  no  man  of  res|)ectability  could  live  in  it,  ami  he  takes  care 
himself  not  to  make  the  contract,  but  leaves  it  to  an  agent  whom  lie  has  no 
reason  to  suppose  is  aware  of  the  fact;  and  if  in  the  course  of  tlie  treaty 
for  the  contract,  the  agent  being  asked  if  such  a  fact  existed,  states  posi- 
tively no,  and  the  contract  is  executed  hi  silence  upon  the  point,  because  the 
purchaser  or  the  tenant's  vigilance  has  been  lulled  to  sleep  upon  it,  and  he 
believes  the  representation  made  to  him  by  the  agent,  I  say,  in  such  a  case  as 
that.  I  should  be  very  much  shocked  at  the  law  of  England  if  I  could  bring 
myself  to  believe  that  it  would  not  reach  the  case  of  a  person  so  availing 
himself  of  a  misrepresentation  of  his  own  agent,  who  might  be  ignorant  of 
the  fact,  although  tlie  principal  himself  knew  it.  and  employed  the  agent  in 
order  to  avoid  making  a  direct  representation  to  the  contrarj'  ....  I 
should  feel  no  hesitation,  if  I  had  myself  to  decide  that  case,  in  saying,  that 
althongh  the  representation  was  not  fraudulent  —  the  agent  not  knowing 
that  it  was  false  —  yet  that,  as  it  in  fact  was  false,  and  false  to  the  knowl- 
edge of  the  principal,  it  ought  to  Aitiate  the  contract." 


PASLEY    V.    FIIEEMAN.  1319 

In  Cornfoot  v.  Fowke  the  question  discussed  -vras,  as  we  bave  seen,  tlie 
effect  of  an  innocent  but  untrue  statement  by  an  agent,  when  coupled  witli  a 
knowledge  on  the  part  of  the  principal,  which  would  clearly  have  been  suffi- 
cient to  support  an  action  of  deceit  against  him,  had  he  himself  made  the 
statement  couiplainod  of.  In  Udell  v.  Atherton,  7  H.  &  N.  172,  the  question 
arose  as  to  the  lial)ility  of  innocent  principals  to  an  action  of  deceit  for  a 
false  and  fraudulent  representation  made  by  their  agent  as  to  the  quality 
of  an  article  sold  by  him,  the  principals  having  adopted  the  contract  and 
received  part  of  the  price.  The  facts  were  shortly  these.  The  defendants 
employed  an  agent  to  sell  timber  on  commission.  The  agent  sold  to  the 
plaintiff  a  log  of  timber,  and  fraudulently  represented  it  to  be  sound,  although 
he  knew  it  to  be  defective.  The  buyer  gave  to  the  principals  two  bills  of 
excliange  for  the  price  of  the  timber,  one  of  which  was  paid ;  and  afterwards 
the  defect  in  the  log  was  discovered.  The  buyer  then  complained  to  the 
principals,  who  stated,  as  was  true,  that  they  had  neither  authorised  nor 
wished  their  agent  to  sell  wood  as  sound  which  was  defective ;  and  they 
refused  to  make  any  allowance,  and  Insisted  on  the  payment  of  the  whole 
price.  Under  these  circumstances  the  judges  of  the  Court  of  Exchequer  dif- 
fered as  to  whether  the  principals  were  liable  in  an  action  of  deceit.  The 
true  rule  was,  however,  it  is  apprehended,  laid  down  by  Sir  James  (then 
Baron)  Wilde,  who  held  that  the  action  would  lie  on  the  ground  that  the 
principals,  having  adopted  the  sale  made  by  the  agent  and  received  the  price, 
wei'e  responsible  for  the  fraud  committed  by  the  agent  in  making  the  con- 
tract, by  which  fraud  alone  the  contract  was  obtained;  and  that  consequently 
the  false  affirmation  by  the  agent  might  be  treated  as  a  false  affirmation  made 
by  the  principals  themselves.  The  authorities  in  support  of  this  view,  which 
are  numerous,  but  not  very  direct,  are  collected  in  Baron  \Yilde's  judgment, 
which  will  repay  a  perusal. 

In  Barwick  v.  The  English  Joint  Stock  Bank,  L.  R.  2  Ex.  259,  Willes,  J., 
in  delivering  the  judgment  of  the  Exchequer  Chamber,  distinguished  the 
opinions  of  Martin  and  Bramwell,  BB.,  in  Udell  v.  Athertnn,  on  the  ground 
that  in  that  case  the  agent  was  not  the  general  agent  of  the  defendants,  and 
that  his  act  had  been  adopted  under  peculiar  circumstances,  and  laid  it  down 
that  for  false  representations  made  by  an  agent  in  the  ordinary  course  of  his 
employment  for  his  master's  benefit,  the  principal  is  responsible,  in  the  same 
manner  as  he  is  for  any  other  wrong  committed  by  a  servant.  In  the  same 
case  the  same  learned  judge  is  reported  to  have  said,  "  I  should  be  sorry  to 
have  it  supposed  that  Cornfoot  v.  Fowke  turned  upon  anything  but  a  point  of 
pleading."  See  also  Sioift  v.  WinterbotUam,  Ij.'R.  8  Q.  B.  244;  Id.  v.  Jews- 
bxiry,  L.  R.  9  Q.  B.  308,  43  L.  J.  Q.  B.  56;  Newlands  v.  National  Employers 
Accident  Association,  54  L.  J.  Q.  B.  428;  and  Mackay  v.  The  Commercial  Bank 
of  New  Brunsvnck,  L.  R.  5  P.  C.  394,  where  Barvnck  v.  21ie  EnglisJi  Joint 
Stock  Bank,  was  approved  and  followed,  and  the  dicta  of  Lords  Cranworth 
and  Chelmsford  in  the  case  of  Western  Bank  of  Scotland  v.  Addic,  L.  R.  1 
H.  L.  Sc.  145,  were  explained  and  distinguished.  And  see  Blake  v.  Albion 
Life  Assura7ice  Co.,  4  C.  P.  D.  94;  48  L.  J.  Q.  B.  169,  and  i^er  Lord  Selborne, 
Houldsworth  v.  City  of  Glasgow  Bank,  5  App.  Ca.  at  p.  326 ;  and  the  dicta  of 
Lord  Esher,  M.  R.,  in  Blackburn  v.  Vigors,  17  Q.  B.  D.  at  p.  559. 

In  Weir  v.  Bell,  3  Ex.  D.  238,  which  was  an  appeal  from  the  decision  of 
the  Ex.  D.  in  Weir  v.  Barnett,  3  Ex.  D.  32,  Bramwell,  L.  J.,  impugns  the 
ground  on  which  the  judgment  of  the  Ex.  Cham,  was  rested  in  Bancick  v. 
English  Joint  Stock  Bank,  pointing  out  that  fraud  is  essentially  a  wilful  act, 


1320  PASLEV   V.   ri:!:i;.MAN. 

and  that,  as  a  general  rule,  a  master  is  not  responsil)!*-  for  tlie  wilful  art  of 
liis  servant.  Ttu-  U-arned  Lord  .lustiee  sngjjests  that  tiic  true  prinripie  npon 
wlueli  a  i)erson  wlio  lias  eonnnitlcd  no  fraud  hinisi-lf,  may  l)e  iielil  responsilde 
for  tlie  fraud  of  Ids  aLCeiit  is,  that  he  implifdly  eoMtracls  tliat  his  a^^i-nt  will 
not  be  {juilty  of  fraud.  If,  however,  tlie  prineiple  of  li'irwirk  v.  Thf  KtniUsh 
Joint  Stni-k  Hunk  he  confined,  as  it  expressly  was  in  that  case,  to  aets  done 
by  the  agent  or  servant  strictly  within  the  scope  of  his  employment,  it  seems 
scarcely  open  to  the  reflections  ciust  upon  It.  Scope  of  employment  has 
undoubtedly  recelveil.  in  many  cases,  an  Interpretation  wide  enough  to  cm- 
brace  within  it  acts  done  without  or  even  in  ilirect  violation  of  the  master'H 
order:  see  lU'tta  v.  df  Viln-,  L.  K.  ;j  Ch.  421);  Murkitij  v.  ('iihinurn'iil  limik  nf 
Neir  lirunsirirk,  stipra,  at  j).  411,  of  L.  U. ;  ami  if  such  be  the  law,  it  would 
seem,  with  deference,  no  more  unreasonable  to  hold  the  principal  resjiousible 
on  the  ordinary  rule  of  nupuniledl  snptrior  for  the  frauds  of  his  agent  com- 
mitted within  the  scope  of  his  authority,  than  to  resort  to  the  llction  of  a 
contract  which  is  not  made  In  fact.  The  rule  laid  d«)wn  in  lianrirk  v.  Enyliah 
Joint  Stork  Hunk,  has  been  approved  and  acted  upon  In  many  snbsc«(ucnt 
cases.  See  the  cases  above  cited,  and  Strirr  v.  Fninris,  ;i  App.  ('as.  106; 
S/iaiP  v.  J'nrl  /'/lilip,  &r.,  Co.,  i;j  Q.  B.  D.  lo:5,  per  Mathew,  .1.  In  W'fir  v. 
Bell,  It  was  held  by  the  Court  of  Appeal,  Cotton,  L.  J.,  dissenting  (alllnning 
the  decision  of  the  court  below),  that  the  defendant,  a  director,  was  not 
responsible  for  false  and  fraudulent  stat«'ments,  inserted  without  his  knowl- 
edge, and  from  which  he  personally  derivetl  no  beuellt.  in  a  pros|)ectus.  |ire- 
pared  by  brokers,  inviting  subscriptions  for  debentures  of  the  company. 
The  company  had,  by  resolution,  authorised  the  directors  to  ral.se  money  by 
the  issue  of  debentures,  and  the  directors  had  thereupon  Instructed  brokers 
to  place  the  debentures.  The  court  below  and  the  majority  of  the  Court  of 
Appeal,  held  that  the  directors  were  themselves  merely  agents  of  the  com- 
pany in  instructing  the  brokers,  and  did  not  stand  to  the  latter  In  the  relation 
of  i)riiu'ii)als,  so  as  to  render  themselves  responsible  without  actual  frautl. 

Cotton,  L.  .!.,  was,  however,  of  opinion  that  the  directors  who  employed 
the  brokers  were  personally  responsible  for  their  fraudulent  misstatements. 
See  also  Cartiill  v.  Bower,  10  Ch.  D.  502 ;  47  L.  .1.  Ch.  G4'.t ;  Mullens  v.  J/j7/er, 
22  Ch.  1).  1!)4 ;  .^2  L.  J.  Ch.  380. 

An  agent,  acting  within  the  scope  of  his  authority,  is  not  personally  liable 
for  an  innocent  misrepresentation,  Eaglesjiehl  v.  Mdniuia  of  Londonderry, 
H.  L.  2(;  W.  R.  .540.] 

As  to  the  eftect  of  fraudulent  representations  made  by  members  of  public 
companies,  in  order  to  induce  parties  to  become  subscribers,  see  Wonlner 
V.  Shairp,  4  C.  B.  404;  Watson  v.  The  Earl  of  CharUnnont,  12  Q.  B.  850;  Ger- 
hard V.  Rates,  2  E.  &  B.  4G6;  [Bayshaw  v.  Seymour,  18  C.  B.  903;  Bedfml 
V.  Baf/shaic,  4  H.  &  N.  538;  Scott  v.  Dixon,  29  Law  J.,  Exch.  62,  note;  The 
National  Exchange  Co.  of  Glasgow  v.  Drew,  2  Macqueen,  H.  of  L.  Cases,  103; 
The  Xew  Brunsicick  and  Canada  Rail.  Co.  v.  Conybeare,  9  H.  of  L.  C  711; 
Peek  V.  Gurney,  L.  R.  6  H.  L.  377 ;  43  L.  J.  Ch.  19  (overruling  Bagshaw  v. 
Seymour  and  Bedford  v.  Bagshaw,  supra),  where  the  cases  on  this  subject  are 
collected;  Weir  v.  Barnett,  supra;  Smith  v.  Chadwick,  9  App.  Cas.  187; 
Edgington  v.  Fitzmaurice,  29  Ch.  D.  459.]  And  as  to  fraudulent  suppression 
for  the  same  purpose,  Jarrett  v.  Kennedy,  6  C.  B.  319;  \^Peek  v.  Gurney, 
supra;  Craig  \.  Phillips.  3  Ch.  D.  722;  Eaglesfeldv.  ^farfjiuis  of  Londonderry, 
4  Ch.  D.  C.  A.  693;  H.  L.  26  W.  R.  540;  Weir  v.  Barnett,  supra;  Erlanger  v. 
New  Sombrero  Phosphate  Co.,  3  App.  Cas.  1218;  Arktrright  v.  Neicbold,  17 


PASLEY   V.    FREEIMAN.  1321 

Ch.  D.  301 ;  50  L.  J.  Ch.  372.  As  to  what  amounts  to  a  fraudulent  suppres- 
sion under  s.  38  of  the  Companies  Act,  1867,  see  Cover's  case,  1  Ch.  D.  182; 
Twycross  v.  Grant,  2  C.  P.  D.  469,  and  cases  therein  cited;  SnUivan  v.  Mit- 
calf,  5  C.  P.  D.  455. 

A  person  who  has  been  induced  to  take  shares  in  a  company  through  the 
fraud  of  its  agents  cannot,  while  retaining  the  shares,  sue  the  company  of 
which  he  is  himself  a  member  for  damages,  his  only  remedy  is  rescission; 
Hoiddsworth  v.  City  of  Glnsgoio  Bank,  5  App.  Cas.  317.] 

In  Pontifex  v.  Bignohl,  3  M.  &  G.  63,  [it  was  held  that]  an  action  [was  well 
brought]  against  an  insurance  company  for  misrepresentations  as  to  the 
mode  in  which  their  business  was  conducted,  by  which  the  plaintiff  had  been 
induced  to  insure.  ["  It  is  well  established  that  in  order  to  enable  a  person 
injured  by  a  false  representation  to  sue  for  damages,  it  is  not  necessary  that 
the  representation  should  be  made  to  the  plaintiff  directly :  it  is  sufficient  if 
the  representation  is  made  to  a  third  person  to  be  communicated  to  the  plain- 
tiff, or  to  be  communicated  to  a  class  of  persons  of  whom  the  plaintiff  is  one, 
or  even  if  it  is  made  to  the  public  generally  with  a  view  of  its  being  acted 
on,  and  the  plaintiff  as  one  of  the  public  acts  on  it,  and  suffers  damage 
thereby."  Swift  v.  Winterhotham,  L.  R.  8  Q.  B.  253,  cited  in  Bichardson  v. 
Silcester,  L.  R.  9  Q.  B.  34.] 

As  to  representations  made  by  creditors  to  sureties,  whereby  they  are 
induced  to  become  such,  or  the  extent  of  their  liability  is,  or  might  be, 
increased,  see  Stone  v.  Compton,  5  N.  C.  142;  Railton  v.  Matthews,  Dom. 
Proc.  10  CI.  &  Fin.  934 ;  Hamilton  v.  Watsow,  Dom.  Proc.  12  CI.  &  Fin.  109. 

An  action  on  the  case  is  maintainable  by  the  manufacturer  of  goods 
against  another  manufacturer  who  marks  his  goods  with  the  known  and 
accustomed  mark  of  the  plaintiff,  with  the  intention  of  making  them  pass 
for  goods  manufactured  by  him;  and  this  although  there  is  no  proof  of 
special  damage;  Rodgersx.  Novnll,  5  C.  B.  109;  [Farina  v.  Silverlock,  6  De 
G.  M.  &  G.  214;  4  Kay  &  J.  650;  and  Dixon  v.  Fawcus,  30  Law  J.,  Q.  B.  137; 
Wotherspnon  v.  Currie,  L.  R.  5  H.  L.  508;  Metzlerv.  Wood,  8  Ch.  D.  606;  47 
L.  J.  Ch.  625.  And  see  the  25  &  26  Vict.  c.  88,  "  An  Act  to  amend  the  law 
relating  to  the  fraudulent  marking  of  merchandise,"  as  to  the  statutory  rem- 
edies which  exist  in  these  cases ;  see  also  46  &  47  Vict,  c;  57.] 

The  expression  of  opinion  by  the  court  in  the  principal  case,  that  the  nov- 
elty of  the  action  is  no  objection,  the  injury  being  clearly  shown  to  exist,  is 
cited  in  the  note  to  Ashby  v.  White,  ante,  vol.  i. 

In  the  case  of  Langridge  v.  Levy,  2  M.  &  W.  519  [S.  C.  in  error,  4  M.  &  W. 
337],  the  Court  of  Exchequer  carried  the  principle  of  Fasley  v.  Freeman 
somewhat  further.  It  was  an  action  for  falsely  and  fraudulently  warranting 
a  gun  to  have  been  made  by  Nock,  and  to  be  a  good,  safe,  and  secure  gun, 
and  selling  it  as  such  to  the  plaintiff's  father,  for  the  use  of  himself  and  sons  ; 
one  of  whom  (the  plaintiff)  confiding  in  the  warranty,  used  the  gun,  where- 
upon it  burst,  and  injured  him.  The  action  was  held  to  be  maintainable. 
"  If,"  says  Parke,  B.,  delivering  judgment,  "  it  (the  gun)  had  been  delivei-ed 
by  the  defendant  to  the  plaintiff  for  the  purpose  of  being  used  hy  him,  with 
an  accompanying  representation  to  him,  that  he  might  safely  so  use  it,  and 
that  representation  had  been  false  to  the  defendant's  knowledge,  and  the 
plaintiff  had  acted  on  the  faith  of  its  being  true,  and  had  received  damage 
thereby :  then  there  is  no  question  but  that  an  action  would  have  lain,  on  the 
principle  of  a  numerous  class  of  cases,  of  which  the  leading  one  is  Fasley 
V.  Freeman ;  which  principle  is,  that  a  mere  naked  falsehood  is  not  enough 


'[IV2-2  I'ASLKY    V.    FUKKMAN. 

to  K'Vf  a  ri;;ht  of  ftction ;  but  timt  it  Is  so  If  It  l)r  u  fiilsehooil  told  wltli  the 
Intention  that  It  should  bo  ac-tril  on  by  the  party  injured,  and  that  art  ujuht 
prodiK-e  dania<;e  to  him.  If,  instead  of  beln^  dtlivcred  to  thr  plaintitt'  imine- 
(Until)/,  the  instrninent  hail  been  placed  in  tin-  hantis  of  a  third  pirson,  fur  the 
purpose  of  hfinij  delicered  to,  and  then  utted  by,  thf  /iliuntijf',  tiie  like  false  rep- 
resentation \H-h\t:  knowin;;ly  made  to  the  Intermediate  person  to  be  enmmii- 
nleateil  to  tlie  plaintitl",  and  tin-  plaintitl"  had  aetetl  upon  U,  there  can  be  no 
doubt  Ijut  that  the  principle  woulil  ei|ually  apply,  ami  the  plaintiff  would  have 
hail  his  remedy  for  the  deceit ;  nor  can  it  make  any  ditlerenee  that  the  third 
person  <ilni>  was  intended  by  the  defendant  to  be  deceived;  nor  iloes  there 
seem  to  be  any  substantial  distinction  if  the  instrument  be  tlelivered  in  order 
to  bf  so  used  by  the  plaintiH",  thoui;h  it  does  not  ap|)ear  that  the  defendant 
Intended  the  false  representation  itself  to  l)e  communicated  to  him.  This  Is 
a  false  representation  made  l)y  the  defendant,  irith  a  rieir  that  the  plaintiff 
should  use  the  instrument  in  a  dawjentus  iruy  ;  and  unless  the  representation 
had  l)een  made,  the  dangerous  act  would  never  have  been  done." 

This  Is  a  remarkable  case;  it  allbrds  an  instance  In  which  a  party  may 
l)rinK  an  action  for  the  conseiiuences  of  a  breach  of  contract,  who  was  not 
tlie  contractee.  and  could  not  have  sued  upon  the  contract.  It  luis  been 
approved  and  act«'d  upon  In  I'ihnnre  v.  //'".(/,  .')  Illn<;.  N.  ('.  tt7,  and  is  .said  to 
liave  proceeded  u|>on  the  i;round  of  Ihv  knnirltdije  niu\  f'raml  of  the  defendant, 
per  .Vldcrson,  ».,  in  W'interhottion  v.  W'ri'jht,  10  M.  vt  W.  IW.  In  that  case  A. 
built  a  coach  for  the  I'ostnuister-CJeneral,  H.  horsed  It,  and  Idred  ('.  as  a 
coachman  to  drive  it.  The  couch  broke  down  from  a  tlefect  lu  the  building;, 
for  wlndi,  however,  it  was  held  that  C.  could  not  sue  A. 

The  authority  of  Lamiridije  v.  I.ery  has  also  been  recogidsed  in  the  ca.se  of 
Lomimeid  v.  Ilidlidaij,  i)  K.xch.  7t;i ;  there  the  plaintitrs  wife  had  purchased 
of  the  defendant  a  lamj)  for  the  purpose  of  its  \w\\\)i  used  by  herself  and  her 
luislmnd :  the  defendant  was  not  a  maiuifacturer  of  lamps  himself,  but 
caused  the  lamps,  of  which  the  lamp  in  i|uestion  was  one,  to  hv  put  together 
by  other  persons  for  him,  from  parts  purchased  of  third  parties;  t!ie  lamp 
was  defective,  and  upon  the  plaintitrs  wife  attem|»tinu  to  use  it.  exploded 
and  seriously  injured  her.  The  action  was  brou;;ht  by  the  plaintitl'  and  hi.s 
wife  jointly  to  recover  compensation  for  the  injury.  There  was  no  proof  at 
the  trial  that  the  defendant  kneir  of  the  defects  in  tlie  lamp,  and  the  jury 
found  that  he  sold  the  lamp  in  Rood  faitli,  w  itlumt  any  fraudulent  or  deceit- 
ful representation;  it  was  held  that  the  action  was  not  niaintainalile,  there 
being  no  fraud  or  any  misfeasance  towards  the  wife  independently  of  the 
contract.     See  also  Gerhard  v.  Bates,  2  E.  .Sc  B.  47G. 

[In  Blakemore  v.  The  Bristol  and  Kjreter  liaihraij  Co.,  8  E.  &  B.  103."»,  a 
crane  had  been  placed  on  the  premises  of  the  company  for  the  purpose  of 
enabling  the  owners  of  goods  to  unload  them ;  a  consignee  of  goods  having 
been  required  by  the  company  to  remove  them,  proceeded  to  raise  the  goods 
with  the  crane,  assisted  by  his  servants  and  the  servants  of  the  company. 
B.,  who  was  the  servant  neither  of  the  consignee  nor  of  the  company,  was 
also  asked  by  the  consignee  to  assist  in  raising  the  goods;  he  did  so.  and 
during  the  operation,  the  crane,  wliich  was  defective  to  the  knowledge  of 
the  company,  broke,  and  B.  was  killed.  It  was  held  that  the  company  was 
not  liable  to  B.'s  administratrix  iu  respect  of  the  accident,  for  although  the 
lender  of  goods  for  the  purpose  of  user  is  responsible  to  the  borrower  in 
respect  of  defects  in  the  chattel,  with  reference  to  the  use  for  which  he 
knows  that  the  loan  is  accepted,  and  of  which  he  is  aware,  he  is  not  respon- 


PASLEY   V.    FREEMAN.  132S 

sible  to  a  mere  stranger  who  is  iu  no  way  privy  to  the  contract  of  loan.  In 
this  case  the  court  observed  that  it  had  always  been  considered  that  Levy 
V.  Lanrjridge  was  a  case  not  to  be  extended  in  its  application;  and  that  if  in 
that  case  a  friend  of  the  father  or  sons,  by  their  permission,  had  used  the 
gun  and  sustained  the  accident,  no  action  could  have  been  maintained  by  him. 
See,  where  the  consignee  himself  was  injured  while  assisting  tlie  servants  of 
the  company,  Wright  v.  London  and  Xortli  Western  Railway  Co.,  1  Q.  B.  D. 
252,  45  L.  J.  Q.  B.  570. 

In  George  v.  Skivington,  L.  R.  5  Ex.  1,  which  was  decided  upon  demurrer, 
the  action  was  by  husband  and  wife ;  the  declaration  stated  that  the  defend- 
ant was  a  chemist,  and  in  the  course  of  such  business  professed  to  sell  a 
chemical  compound  made  of  ingredients  linown  only  to  the  defendant,  Avhich 
he  represented  to  be  fit  and  proper  to  be  used  for  washing  the  hair  without 
injury  to  the  person  using  it,  and  to  have  been  carefully  and  skilfully  com- 
pounded by  himself ;  that  the  defendant  sold  a  bottle  to  the  husband  to  be 
used  by  the  wife  as  a  hair-wash  as  the  defendant  knew,  and  upon  the  terms 
that  the  same  was  fit  to  be  used  by  her  without  injury,  and  had  been  skilfully 
and  carefully  compounded  by  the  defendant.  Yet  the  defendant  had  so  negli- 
gently and  improperly  conducted  himself,  &c.,  that  by  the  mere  negligence, 
&c.,  of  the  defendant,  the  said  compound  could  not  be  used  without  personal 
injury,  whereby  the  wife  in  using  the  same  was  injured. 

It  was  objected  on  the  part  of  the  defendant  that  the  injury  to  the  wife 
being  the  cause  of  action,  the  declaration  disclosed  no  facts  which  cast  upon 
the  defendant  a  legal  duty  towards  her,  and  it  was  attempted  to  distinguish 
the  case  of  Langridge  v.  Levy  on  the  ground  that  in  the  present  case  there 
was  no  averment  that  the  defendant  knew  that  the  compound  was  deleteri- 
ous. The  court  held  that  the  declaration  disclosed  a  good  cause  of  action  on 
the  ground  that  the  duty  of  the  vendor  towards  the  purchaser  to  use  ordinary 
care  in  compounding  the  wash  extended  to  the  person  for  whose  use  the 
vendor  knew  the  compound  was  purchased.  Cleasby,  B.,  is  reported  to 
have  said  "substitute  negligence  for  fraud  and  the  analogy  between  Lang- 
ridge V.  Levy,  and  this  case  is  complete." 

It  is  a  little  difticult  to  extract  from  the  judgments  the  precise  principle 
upon  which  this  case  was  decided,  but  it  is  submitted  that  it  may  be  sup- 
ported, if  at  all,  upon  the  analogy  of  those  cases  cited  by  Parke,  B.,  in  the 
judgment  in  Longmeid  v.  Holliday,  in  which  persons  not  parties  to  contracts 
may  sue  for  the  damage  sustained  if  they  be  broken  :  cases  in  which  a  wrong 
has  been  done  to  a  person  for  which  he  would  have  had  a  remedy  although  no 
such  contract  had  been  made,  as,  for  instance,  where  an  apothecary  who  has 
supplied  improper  medicines,  or  a  surgeon  who  has  unskilfully  treated  a 
patient,  has  been  held  liable  to  him  for  misfeasance,  although  the  father  or 
friend  of  the  patient  may  have  been  the  contracting  party.  See  Pippin  v. 
Shepherd,  11  Price  400;  Gladwell  v.  Sleggall,  5  Bing.  N.  C.  733;  Foulkes  v. 
Metropolitan  District  Railway  Co.,  5  C.  P.  D.  157,  and  compare  Marshall  v. 
York,  Newcastle,  and  Berioick  Railway  Co.,  11  C.  B.  655,  21  L.  J.  C.  P.  34. 
The  dictum  of  Cleasby,  B.,  however  applicable  to  the  facts  of  the  case  under 
discussion,  must,  it  is  apprehended,  be  taken  as  strictly  limited  to  them, 
since  it  would  be  difficult  to  reconcile  with  Longmeid  v.  Holliday,  the  doc- 
trine that  the  mere  omission  to  use  ordinary  care  in  the  manufacture  of  a 
chattel  could,  in  the  absence  of  fraud  or  knowledge  of  the  defect,  render  the 
vendor  liable  to  third  persons  not  parties  to  the  contract,  although  he  was 
aware  that  the  chattel  was   designed  for  their  use;    see    Winterbottorn  v. 


13:^4  I'ASLKV    V.    lUKK.MAN. 

Wriijht,  sup.,  Lotifjmi'itl  v.  JIiillulit>j,  sup.,  aiul  im-ri'  no;;li<;t'iu-('  and  fraiitl  can- 
not fonsistontly  witli  tliosc-  decisions  bo  treiittMl  as  convertible  terms  in 
such  cases. 

For  a  case  sliowinj;  wiiat  tleijri'e  of  connection  It  is  necessary  to  estal)Hsh 
between  the  nejflijjent  person  anil  the  person  Injured,  see  (.'ollin  v.  Selden,  L. 
U.  'A  C.  P.  495,  with  which  case  compare  Parry  v.  Smith,  4  V.  V.  I).  .•J'i.'i. 

Since  the  last  edition  of  tills  work,  the  principle  involved  in  these  cases 
was  attain  much  discussed  in  the  recent  case  of  Ilfuvfii  v.  I'fiider,  '.»  (j.  H.  I). 
•MYl;  II  Q.  B.  I).  '>!):$;  J2  L.  .1.  Q.  B.  702.  In  that  case  the  plaintiH",  a  painter, 
met  witli  an  accidi'ut  tlirou;;h  the  defective  condition  of  the  ropes  support- 
in?;  a  stuije  upon  which  lie  was  standini;  while  paintini;  a  ship  lyiui;  in  dock. 
The  stajje  was  supplied  by  the  dock  owner  under  a  contract  with  the  ship- 
owner, l)y  whom  the  plaintitt'  was  employed.  There  was  evidence  that  the 
tlefendant  hail  not  taken  reasonable  care  as  to  the  condition  of  the  ropes  at 
the  time  when  he  supplied  the  staije.  Judgement  havin<r  l)een  ^Iven  for  the 
plaintitt'  in  the  county  court,  the  divisional  court  (Field  and  Cave,  .1.1.)  set  it 
aside,  and  ;;ave  judgment  for  the  defendant,  hoUlinij  that  on  the  facts  tliere 
was  no  relation  of  contract  or  duty  between  the  piaintitf  and  the  defendant, 
wlio  had  not,  as  in  Litn<in<l<jf  v.  Linj,  l)een  K>''lty  of  fraud  or  of  a  breach  of 
duty  to  tell  the  truth,  and  who  ditl  not  come  uiuh-r  the  rule  as  to  pi-rsons 
wlio  invite  others  to  use  thi-ir  property,  inasmuch  as  he  had  ceased  to  have 
any  control  over  the  stajje  after  he  parted  with  it  to  the  shipowner.  They 
treated  (ieortje  v.  Skirinijtnn  as  in  point,  but  as  Inconsistent  with  Wiutftlinttmn 
V  .  W  riijht  a.\v.\  I.iiHijmiid  v.  IlnUiilnij,  which  latter  cases  they  preferred  to  follow. 
Tills  ilecision  was  reversed  on  appeal,  but  with  a  ditt'erence  of  opinion  ainon^ 
the  Lords  .Justices.  Brett,  M.  U.,  after  an  elaborate  examination  of  the  au- 
thorities, in  which  he  treats  (it'orije  v.  Skiviiuitntt,  as  well  decided,  tleduces  from 
them  the  followiiiii  proposition,  which  he  lays  down  as  coverins;  and  reconcil- 
inu;  tliem  all  "  that  whenever  one  person  is  by  circunistaucos  placed  in  such  a 
jxisition  witli  regard  to  another  that  every  one  of  ordinary  sense  who  did  think 
would  at  once  recojiuize  that  if  he  «lid  not  use  ordinary  care  and  skill  in  his 
own  coiuluct  with  regard  to  those  circumstances  he  would  cause  danger  of  in- 
jury to  the  person  or  property  of  the  other,  a  duty  arises  to  use  ordinary  care 
and  skill  to  avoid  danger."  He  was,  however,  further  of  opinion  that  the  case 
fell  within  the  narrower  proposition,  which  atTlrms  the  duty  of  the  inviter 
towards  the  person  inviteil  to  take  reasonable  care.  Cotton,  L.  J.,  in  a  judg- 
ment in  which  Bowen,  L.  J.,  concurred,  declined  to  adopt  the  larger  proposi- 
tion aijove  set  out,  instancing  Lmif/ridtje  v.  Levy,  Blnkemore  v.  Bristol  and 
Exeter  Rail.  Co.,  CuUis  v.  Selden,  and  Linnjmeid  v.  /lolUd'i;/,  as  ca.ses  in  which 
it  was  inipliedl.v  negatived.  He  heUl,  however,  that  when  ships  were  received 
into  dock  for  repair,  and  provided  with  stages  for  the  work  on  them  wliicli 
was  to  be  executed  there,  all  those  who  came  to  such  ships  for  the  purpose 
of  painting  and  otherwise  repairing  them,  were  there  for  business  in  which 
the  dock  owner  was  interested,  and  must  be  considered  as  invited  by  the 
dock  ow'uer  to  use  the  dock  and  all  appliances  provided  by  him  as  incident  to 
the  use  of  the  dock.  That  he  would  not  be  responsible  for  defects  arising 
through  the  neglect  of  those  who  took  the  control  of  the  stage  after  he 
parted  with  it,  but  that  in  the  case  before  them  the  defect  which  caused  the 
accident  existed  at  the  time  when  the  stage  was  provided  by  the  dock  owner. 
(See  also  Elliott  v.  Hall,  15  Q.  B.  D.  315  ;  54  L.  J.  Q.  B.  518.)  In  dealing  with 
Georr/e  v.  Skivington,  Cotton,  L.  J.,  expresses  no  disagreement  with  the  divis- 
ional courts ;  on  the  contrary,  he  says  it  seems  to  support  the  general  propo- 


PASLEY   V.    FREEMAN.  1325 

sition  which  he  denies  to  be  law,  and  that  Cleasb3%  B.,  had  for  the  purposes  of 
that  action  treated  the  negligence  of  the  defendant  as  equivalent  to  fraud, 
which  he  regarded  as  the  ground  upon  which  Langridge  v.  Levy  was  decided. 

The  general  rule  that  a  person  who  is  no  party  to  a  contract  cannot  sue  in 
respect  of  damage  resulting  to  him  from  the  breach  of  it  is  well  illustrated 
by  the  case  of  AUon  v.  The  Midland  Railway  Company,  19  C.  B.  N.  S.  213, 
where  a  master  sued  a  railway  company  for  neglect  of  duty  in  carrying  his 
servant,  Avhej-eby  the  latter  was  injured,  and  the  master  lost  the  benefit  of 
his  services.  The  court  however  held  that  the  injury  had  resulted  from  a 
breach  of  duty  arising  out  of  a  contract,  that  the  mode  of  declaring  could  not 
aflect  the  liability  of  the  defendants,  and  that  the  master,  being  no  party  to 
the  contract,  could  not  sue  in  respect  of  damage  caused  by  a  breach  of  it. 
See  further  Goslin  v.  Agricultural  Hall  Co.,  1  C.  P.  D.  482;  Cattle  v.  Stockton 
Waterworks,  L.  R.  10  Q.  B.  453. 

Where,  however,  the  defendant,  a  gasfitter  employed  by  the  plaintifi''s  mas- 
ter, left  his  Avork  in  such  a  condition  as  to  be  dangerous  to  a  person  approach- 
ing it  with  reasonable  caution,  the  plaintift",  having  been  injured  while  so 
approaching  it,  was  held  entitled  to  recover.  In  this  case  there  was  a  duty 
upon  the  gasfitter,  wholly  independent  of  contract,  to  take  proper  precau- 
tions to  prevent  a  thing  dangerous  in  itself  from  causing  damage  to  any  per- 
son lawfully  approaching  it.     Parry  v.  Smith,  4  C.  P.  D.  325. 

The  rules  deducible  from  Langridge  v.  Levy  as  to  liability  for  representa- 
tions are  elaborately  discussed  by  Wood,  V.-C,  in  his  judgment  in  Barry  v. 
Croskey,  2  J.  &  H.  18-23,  cited  with  approval  by  Lord  Cairns  in  Peek  v.  Gur- 
ney,  L.  R.  6  H.  L.  412.] 


General  acceptance  of  the  principal  case  in  the  United  States. 
—  The  action  to  recover  for  a  fraudulent  representation  of 
another's  solvency  is  but  an  instance  of  the  action  for  deceit. 
Where  all  the  necessary  elements  concur,  it  is  now  generally 
recognized  that  the  action  will  lie  notwithstanding  the  objec- 
tions which  were  urged  against  it.  In  the  majority  of  cases  the 
question  of  the  defendant's  liability  for  a  fraudulent  misrepre- 
sentation has  not  been  raised,  but  it  has  been  assumed  that  he 
is  liable  provided  the  necessary  elements  concur.  The  cases 
are  numerous,  however,  in  which  the  question  whether  the 
action  will  lie  has  been  discussed.  In  Upton  v.  Vail,  6  Johns. 
181,  the  defendant,  who  had  a  judgment  bond  against  one 
Brown,  and  knew  him  to  be  worthless,  nevertheless  recom- 
mended him  to  plaintiff  as  being  "  as  good  as  any  man  in  the 
county  "  for  the  price  of  the,  goods  plaintiff  was  to  sell  him. 
After  plaintiff  had  made  the  sale,  the  defendant  entered  judg- 
ment, and  under  execution  levied  on  the  goods  sold  to  Biown 
by  plaintiff.  Kent,  Ch.  J.,  delivered  the  opinion  of  the  court, 
in  which  he  said:  ''We  have  never  expressly  decided  in  this 
court  that  the  action  would  lie.  .   .  .     The  case  of  Pasley  v.  Free- 


loJO  I'ASLKV    V.    I'ltKKMAN. 

man,  decided  in  tlie  K.  H.  so  lute  us  the  year  17.S9  ...  is  the 
fust  direct  authority,  iu  the  Euglislj  courts,  in  support  of  tlio 
action.  I  liave  carefully  examined  the  reasoning  of  the  judges 
in  that  case,  and  in  the  sul)sequent  cases,  which  g«)  to  questicni 
or  sujUjort  the  soundness  of  that  decision;  and  I  profess  luy 
ai)i)rol)ation  of  tlie  doctrine  on  which  it  was  decided.  Tiie  case 
went  not  upon  any  new  ground.  Imt  upon  the  application  of  a 
princii)le  of  natuial  justice,  long  recognized  in  the  law,  tiiat 
fraud  or  deceit,  acconi[)anicd  with  damage,  is  a  good  cause  of 
action.  This  is  as  just  and  permanent  a  principle  as  any  in  our 
whole  jurisprudence."  And  again  :  "  liut  independent  of  the 
English  cases,  I  place  my  opinion  upon  the  i)road  doctrine  that 
fraud  and  damage  coupled  together  will  sustain  an  action.  This 
is  a  princi[)le  of  universal  law."  In  Connecticut  the  cases  of 
Wise  V.  Wilcox,  1  Day  22,  and  Hart  v.  Tallmadge,  2  Day  :5Sl, 
follow  I'asley  f.  Freeman.  In  Kidney  v.  Stoddard,  7  Met.  2r)2, 
it  was  said  that :  ''  From  the  tiuu;  of  the  judgment  in  the  great 
case  of  Pasley  i\  Freeman  to  the  pn-sent  day,  through  the  long 
line  of  decisions  hoth  in  ICngland  and  .Vnu-rica,  the  principle  of 
that  lase,  though  wilii  some  statute  modilications,  remains 
unshaken  and  unimpaired."  .\nd  the  (luestion  was  discussed 
and  the  Entrlish  cases  followed  in  N'ermont  in  l-^wius  v.  Calhoun, 
7  Vt.  70,  and  Weeks  v.  Burton,  7  Vt.  (17  :  and  in  Pennsylvania 
in  Boyd's  Executors  v.  Browne,  <>  Pa.  St.  olO.  Decisions  in 
other  states  will  be  found  in  Endsley  v.  Johns,  120  111.  4»J9; 
McKown  /•.  Furgason,  47  la.  036;  Chisolm  v.  (iadsden,  1 
Strol).  220. 

What  must  be  proved  to  maintain  the  action.  —  In  Busterud  v. 
Farrington,  oti  Minn.  o2(>,  tlie  essentials  of  the  action  for  deceit 
were  laid  down:  "An  action  for  deceit  lies  against  one  who 
makes  a  false  reprcscntatit»n  of  a  material  fact  susceptible  of 
knowledge,  knowing  it  to  be  false,  or  as  of  his  own  knowledge 
when  he  does  not  know  whether  it  is  true  or  false,  with  inten- 
tion to  induce  the  person  to  whom  it  is  made,  in  reliance  ui)on 
it,  to  do  or  refrain  from  doing  something  to  his  pecuniary  hurt, 
when  such  person  acting  with  reasonable  prudence  is  thereby 
deceived  and  induced  to  so  do,  or  refrain,  to  his  damage." 

The  representation  must  be  false  Twhen  made.  —  Unless  the  state- 
ment be  false,  no  action  will  lie :  and  the  question  of  the  truth 
or  falsity  of  the  representation  must  be  determined  by  the  facts 
as  they  were  when  the  representation  was  made.     A  change  in 


PASLEY   V.    FREEMAN.  1327 

the  condition  of  affairs,  subsequent  to  the  time  of  making  the 
representation,  cannot  affect  the  liabiUty  of  the  person  making 
it ;  Corbett  v.  Gilbert,  24  Ga.  454.  And  it  seems  the  defendant 
is  liable  for  a  fraudulent  misrepresentation,  even  when  at  the 
time  the  plaintijEf  acted  in  reliance  on  the  representation,  the 
statement  was  true,  if  it  was  false  when  made ;  Reeve  v.  Den- 
nett, 145  Mass.  23,  30. 

Falsity  may  consist  in  suppression  of  the  truth,  or  the  assertion 
of  a  falsehood.  —  The  false  representation  may  consist  in  the 
suppression  of  the  truth,  as  well  as  in  the  assertion  of  a  false- 
hood ;  Allen  v.  Addington,  7  Wend.  9.  In  Kidney  v.  Stoddard, 
7  Met.  252,  the  defendant  had  concealed  the  fact  that  the  per- 
son he  recommended  was  a  minor.  The  judge  instructed  the 
jury  that  when  a  party  intentionally  conceals  a  material  fact,  in 
giving  a  letter  of  recommendation,  it  amounted  to  a  false  repre- 
sentation. On  motion  for  a  new  trial  the  charge  was  held  to  be 
correct.  See,  also,  Tryon  v.  Whitmarsh,  1  Met.  1 ;  Boyd's  Exec- 
utors V.  Browne,  6  Penn.  St.  310 ;  Decker  v.  Hardin,  5  N.  J. 
579 ;  Bokee  v.  Walker,  14  Penn.  St.  139 ;  Chisolm  v.  Gadsden, 
1  Strob.  220  ;  Rheem  v.  Naugatuck  Wheel  Co.,  33  Penn.  St. 
358.  In  Chisolm  v.  Gadsden,  it  was  held  that  a  misrepresenta- 
tion need  not  consist  in  words  "  but  that  on  the  contrary,  such 
a  fraud  as  sustains  the  action  in  question  may  grow  out  of 
deeds  as  well  as  words,"  Lobdell  v.  Baker,  1  Met.  193.  But 
while  one  can  commit  a  fraud  by  mere  silence,  a  deception 
implies  some  act  or  language. 

The  representation  must  be  of  a  fact.  —  The  representation  must 
be  of  a  fact;  Buschman  v.  Codd,  52  Md.  202;  Ins.  Co.  v.  Reed, 
33  Ohio  St.  283 ;  and  the  cases  lay  down  very  generally  that  an 
opinion  is  not  a  fact  within  the  meaning  of  the  law.  It  is  said, 
"  If  any  one  relies  on  mere  opinion  instead  of  ascertaining  facts, 
it  is  his  own  folly  ;  "  Sieveking  v.  Litzler,  31  Ind.  13  ;  Fulton  v. 
Hood,  34  Pa.  St.  365 ;  Tuck  v.  Downing,  76  111.  71  ;  Crown  v. 
Carriger,  66  Ala.  590 ;  Starr  v.  Bennett,  5  Hill  303 ;  Belcher  v. 
Costello,  122  Mass.  189 ;  Buschman  v.  Codd,  52  Md.  202 ;  Gordon 
V.  Butler,  105  U.  S.  553.  It  is  probably  safe  to  say,  however,  that 
as  the  rule  is  generally  stated,  it  rests  on  no  logical  basis,  and 
does  not  represent  the  law.  The  state  of  one's  mind  on  a  sub- 
ject is  a  fact,  and  it  is  immaterial  whether  it  be  in  regard  to  a 
subject  capable  of  positive  knowledge,  or  in  regard  to  one  on 
which  only  an  opinion  can  be  entertained;  and  the  state  of  the 


1328  PASLEY    V.    IK  1.1. MAN. 

defendant's  mind  in  reference  to  his  Ixjlief  in  the  truth  of  the 
statt'UU'nt  made  hy  him,  ii.s  will  appear  helow,  i.s  the  ti'st  of  his 
liiil)ility.  As  rej^ards  the  form  of  the  statement,  it  is  ohviously 
iimiialt'i  ial  whether  the  defendant  says:  "Such  is  my  opinion  ;" 
or,  "such  is  the  fact."  In  eitlier  ease  the  speaker  is  understood 
to  he  e.xpre.ssing  his  opinion  merely,  and  the  statement  that  a 
fraudulent  misrepresentation  i>f  an  opinion  creates  no  liahility, 
has  no  reference  to  the  form  of  the  words,  hut  only  to  tlie  sub- 
ject-matter. 'I'he  rule  is  su|>posed  to  apply  to  cases  in  which  a 
statement  is  made,  re^Mrdin^;  the  tiulh  of  which  the  person 
njakin^  it  can  have  n<»  alxsolute  knowledge.  In  this  class  of 
casrs  the  defendant  must  state  his  U-lief  trutiifully,  or  lie  is 
liahlc  if  damage  ensue  to  the  plaintiff.  A  different  rule  ap[)lies 
to  statements  made  hy  persons  who  are  alK)ut  to  contract  witli 
each  other.  The  consideration  of  the  reason  for  this  excei)tion 
must,  for  the  present,  he  deferred.  Hut  it  is  the  cla.ss  of  cases 
just  mentioned  which  has  given  ri.se  to  the  erroneous  idea,  that 
a  liahility  can  not  he  created  hy  a  fraudulent  mi.sstatcment  of  a 
matter  of  opinion.  The  cases  generally  arise  lu'twcen  vendor 
and  vendee,  where  the  vendor  has  overestimated  the  value  of 
iiis  property;  the  ri-ason  given  for  exempting  the  vendor  from 
rcsponsihility  for  his  misstatements,  viz.,  that  the  value  of  proj)- 
erty  is  a  matter  of  opinion,  and  hence  no  action  will  lie,  is  shown 
to  he  wrong  hy  the  fact  that  an  action  will  lie  against  a  defend- 
ant, not  a  party  to  the  contract,  who  expresses  a  fiaudiUeiit 
opinion  as  to  the  value;  Medbury  v.  Watson,  •)  Met.  '24it ; 
Busterud  v.  Farrington,  30  Minn.  320.  The  same  idea  seems 
to  have  been  in  the  mind  of  Mr.  Justice  Field  in  (Jordon  v.  But- 
ler, 105  U.  S.  553,  where  the  defendants  had  given  a  certificate 
of  the  value  of  certain  tpiarries.  The  ease  of  Pasley  v.  Free- 
man is  high  authority  for  the  view  that  a  statement  of  o})inion 
as  well  as  of  fact,  renders  the  defendant  liable  for  a  fraudulent 
misrepresentation.  A  representation  of  another's  solvency  must 
in  the  nature  of  things  be  an  expression  of  oi)inion,  and  it  was 
so  held  in  Belcher  v.  Costello,  122  ]\hiss.  1<S9,  where  the  judge 
says :  "  The  representation  proved,  as  stated  in  the  bill  of  recei> 
tions,  was  that  the  parties  were  good.  This,  taken  by  itself,  is 
not  the  statement  of  a  fact,  but  the  expression  of  an  opinion 
merely ; "  Marsh  v.  Falker,  -40  N.  Y.  562  ;  Doty  v.  Campbell, 
1  How.  Pr.  N.  S.  101.  The  same  view  was  taken  in  Savage  v. 
Jackson,  19  Ga.  305,  though  it  was  erroneously  supposed  that 


PASLEY    V.    FKEEMAN.  1329 

that  view  was  inconsistent  with  the  correctness  of  Pasley  v.  Free- 
man. See,  also,  Lyons  v.  Briggs,  14  R.  I,  222 ;  Jude  v.  Wood- 
burn,  27  Vt.  415.  The  conclusion  to  be  drawn  from  the  cases 
is  that  the  defendant's  "opinion"  is  to  be  regarded  as  a  fact,  for 
fraudulently  misrepresenting  which  he  incurs  a  liability.  See, 
also,  Hubbell  v.  Meigs,  50  N.  Y.  480,  489 ;  Hickey  v.  Morrell, 
102  N.  Y.  454,  463. 

A  promise  is  not  a  representation.  —  A  promise  or  expression 
of  intention  is  not  a  representation,  and  the  person  making  it 
cannot  be  held  liable  as  for  a  deceit,  even  though  he  had  no 
intention  of  living  up  to  it.  Thus  where  the  declaration  alleged 
that  the  defendant  expressed  a  willingness  to  endorse  the  note 
of  another,  if  the  plaintiff  would  sell  him  a  quantity  of  cotton, 
in  reliance  on  which  representation  plaintiff  sold  the  cotton ; 
that  defendant  was  not  willing  and  did  not  intend  to  indorse 
the  note ;  and  that  by  reason  thereof  the  plaintiffs  were  dam- 
aged, it  was  held  that  there  was  no  ground  for  an  action 
for  a  deceitful  representation ;  Gallager  v.  Brunei,  6  Cow.  346 ; 
Gage  V.  Lewis,  68  111.  604 ;  Lexow  v.  Julian,  21  Hun  577 ; 
Fenwick  v.  Grimes,  5  Cranch  C.  C.  439 ;  Farrar  v.  Bridges,  3 
Humph.  566  ;  Long  v.  Woodman,  58  Me.  49 ;  Burt  v.  Bowles, 
69  Ind.  1 ;  Sieveking  v.  Litzler,  31  Ind.  13. 

Representation  of  law.  —  A  misrepresentation  as  to  the  law 
applicable  to  a  given  state  of  facts  cannot  be  made  the  basis  of 
an  action  for  deceit;  Starr  v.  Bennett,  5  Hill  303.  The  reason 
given  for  this  is,  that  as  the  law  is  presumed  to  be  equally  well 
known  to  all,  no  one  has  a  right  to  rely  on  the  opinion  of 
another  respecting  it ;  Townsend  v.  Cowles,  31  Ala.  428 ;  Steam- 
boat Belfast  V.  Boon,  41  Ala.  50 ;  Clem  v.  Newcastle  &  Danville 
R.  R.  Co.,  9  Lid.  488  :  Russell  v.  Branham,  8  Blackf .  277 ;  Ins. 
Co.  V.  Reed,  33  Ohio  St.  283 ;  Fish  v.  Cleland,  33  111.  238 ; 
Lehman  v.  Shacklef ord,  50  Ala.  437 ;  Reed  v.  Sidener,  32  Ind. 
373 ;  Lexow  v.  Julian,  21  Hun  577 ;  Burt  v.  Bowles,  69  Ind.  1  ; 
Gormely  v.  Gymnastic  Association,  55  Wis.  350 ;  People  v. 
Supervisors  of  S.  F.,  27  Cal.  655 ;  Jaggar  v.  Winslow,  30  Minn. 
263;. Upton  v.  Tribilcock,  91  U.  S.  45.  But  see  Abbott  v. 
Treat,  78  Me.  121,  126. 

The  representation  must  be  of  a  material  fact.  —  A  misrepre- 
sentation to  be  actionable  must  be  of  a  material  fact ;  Schwa- 
backer  V.  Riddle,  99  111.  343  ;  Jordan  v.  Pickett,  78  Ala.  331 ; 
Hall  V.  Johnson,  41  Mich.  286.     "•  If  false  and  fraudulent  rep- 


1330  PASLKY    V.    niKKMAN, 

resentations  he  ixllt'^fd  as  tlie  j^noiiiKhvoik  for  avoiding  u  bar- 
gain, it  nuist  1)L'  shown  that,  like  poison,  it  entered  into,  and 
mixing  with,  the  vital  essenee  of  it,  taint«Ml  iind  destroyed  it;" 
Clark  V.  Hverhart,  03  Penn.  St.  347.  Still  a  party  who  ha.s 
effected  his  purpose  through  a  misrepresentation  eannot  ordina- 
rily deny  its  materiality,  and  it  will  he  considered  enough  if  it 
might  have  had  a  substantial  etTect,  as  one  of  several  induce- 
nifiits.  It  need  not  have  W'cii  the  sole  inducenieni  ;  James  v. 
Ilodsden,  47  \'t.  1-7  ;  -Jordan  r.  Vickcit,  supnt  ;  Addington  i'. 
Allen,  11  Wend.  374:  Saff.)rd  v.  (irout,  120  Mass.  liO ;  Hale  r. 
Philinick,  47  i;i.  L'17  :  Fishbaek  v.  Miller,  1.")  Nev.  428;  Winter 
V.  lian.lel,  30  Ark.  3(12  ;  Lebby  r.  Ahrens,  2t;  S.  ( '.  27.').  Hut 
see  Xrwsoni  r.  .laekson,  2tt  (i;i.  24S. 

Must  be  fraudulent  as  well  as  false.  —  Vo  render  the  defendant 
liable,  the  rei)resent.ation  must  be  not  only  false,  but  fraudulent. 
A  mere  mistake  will  not  impose  any  liability  upon  him.  It  is 
well  srttled  in  this  eountry,  th.it  as  f;ir  as  the  class  of  eases 
under  consideration  is  concerned,  the  defendant  must  have 
been  guilty  <>f  a  moral  wrong  to  rendtu-  him  liable;  Cowley  /•. 
Smyth,  40  N.  .1.  L.  380.  If  the  defendant  states  what  he  knows 
to  be  untrue,  or  makes  a  positive  representation  as  of  his  own 
knowledge,  when  he  knows  nothing  whatever  about  the  matter, 
he  is  guilty  of  a  deceit  if  the  statement  be  untrue;  McKown  v. 
Furgason,  47  la.  030.  The  moral  element  in  tlie  second  class 
of  cases  is  to  l)e  found  in  the  imi»lied  assertion  that  the  person 
making  it  has  some  knowledge  ainjut  the  matter,  when  in  real- 
ity he  has  not.  In  many  of  the  cases  an  "  intent  to  deceive  "  or 
"to  defraud"  is  said  to  be  necessary.  This  does  not  mean  that 
the  defendant  must  have  intended  to  injure  the  i)laintilT.  From 
the  very  fact  that  one  makes  a  misstatement  knowingly,  and  in- 
tending that  it  shall  be  acted  on,  an  intent  to  deceive  or  to  de- 
fraud is  inferred;  Cowley  v.  Smyth,  40  N.  J.  L.  380;  Hudnut 
V.  Gardner,  59  Mich.  341 ;  Endsley  v.  Johns,  120  111.  409.  The 
rule  is  necessarily  different  where  the  deceit  is  alleged  to  con- 
sist in  a  suppression  of  the  truth.  The  failure  to  state  all  the 
facts  knowingly  does  not  render  the  defendant  liable,  unless 
made  with  a  view  to  deceive  the  person  relying  on  his  repre- 
sentation ;  Bokee  v.  Walker,  14  Pa.  St.  139. 

Statements  known  to  be  false.  —  In  Lord  v.  Goddard,  13  How. 
198,  the  court  sav :  •'  The  srist  of  the  action  is  fraud  in  the  de- 
fendants,  and  damage  to  the  plaintiff.     Fraud  means  an  inten- 


PASLEY   V.    FEEEMAN.  1331 

tion  to  deceive.  If  there  was  no  such  intention,  if  the  party 
honestly  stated  his  own  opinion,  believing  at  the  time  that  he 
stated  the  truth,  he  is  not  liable  in  this  form  of  action,  although 
the  representation  turned  out  to  be  entirely  untrue."  To  the 
same  effect,  Marsh  v.  Falker,  40  N.  Y.  562 ;  Stitt  v.  Little,  63 
N.  Y.  427 ;  Avery  v.  Chapman,  62  la.  144 ;  Sims  v.  Eiland,  57 
Miss.  83  ;  Holdom  v.  Ayer,  110  111.  448  ;  Graham  v.  HolHnger, 
46  Pa.  St.  55.  In  this  last  case  the  court  say :  "  Guilty  knowl- 
edge and  an  intent  to  deceive  were  essential  to  the  plaintiff's 
recovery ;  "  Huber  v.  Wilson,  23  Pa.  St.  178 ;  Tucker  v.  White, 
125  Mass.  344 ;  Hartford  Ins.  Co.  v.  Matthews,  102  Mass.  221 ; 
Terrell  v.  Bennet,  18  Ga.  404 ;  Crown  v.  Brown,  30  Vt.  707 ; 
Zabriskie  v.  Smith,  13  N.  Y.  322;  Sollund  v.  Johnson,  27  Minn. 
455 ;  Schwabacker  v.  Riddle,  99  111.  343. 

Reckless  statements.  —  Representations  made  in  ignorance  of 
their  truth  or  falsity  involve  moral  turpitude  equally  with 
knowingly  false  statements.  "  If  the  party  made  the  representa- 
tion not  knowing  whether  it  was  true  or  false,  he  cannot  be  con- 
sidered as  innocent ;  since  a  positive  assertion  of  a  fact  is,  by 
plain  implication,  an  assertion  of  knowledge  concerning  the 
fact.  Hence,  if  a  party  had  no  knowledge,  he  has  asserted  for 
true  what  he  knew  to  be  false  ; "  Ins.  Co.  v.  Reed,  33  Ohio  St. 
283,  citing  Bigelow  on  Fraud,  61 ;  Stone  v.  Covell,  29  Mich. 
359;  Woodruff  v.  Garner,  27  Ind.  4;  Fisher  v.  Mellen,  103 
Mass.  503 ;  Foard  v.  McComb,  12  Bush  723 ;  Nugent  v.  C.  H. 
&  I.  Street  R.  R.  Co.,  2  Disn.  (Ohio)  302.  This  is  the  rule 
laid  down  in  Hartford  Ins.  Co.  v.  Matthews,  102  Mass.  221 ; 
Beebe  v.  Knapp,  28  Mich.  53,  76 ;  Duff  v,  Williams,  85  Penn. 
St.  490 ;  Einstein  v.  Marshall,  58  Ala.  153.  The  language  used 
by  the  court  in  Tucker  v.  White,  125  Mass.  344,  goes  even  fur- 
ther, and  would  seem  to  make  one  asserting  a  fact  as  of  his 
own  knowledge  responsible  absolutely  for  the  correctness  of 
his  statement.  But  this  is  not  a  correct  exposition  of  the 
law,  unless  the  person  making  the  representation  has  no  rea- 
son whatever  for  his  belief  on  the  subject. 

No  liability  for  rash  or  indiscreet  statements.  —  If  he  has  some 
reason  to  believe  he  knows  the  facts  to  be  as  he  states  them,  he 
is  not  to  be  held  liable  simply  for  being  rash  or  indiscreet; 
Young  V.  Covell,  8  Johns.  23 ;  and  whether  he  had  sufficient 
reason  for  his  belief  is  not  a  proper  matter  of  inquiry  so  long  as 
there  was  some  foundation  for  the  belief. 


1332  PASLEY    V.    IKF.KMAN. 

It  is  not  necessary  that  there  should  be  reasonable  grounds  for 
the  belief  expressed.  —  Jii  Dilwoitli  v.  Unidnfi-,  Mr,  Juslifo 
Sluirswoocl,  in  discussing  the  question,  siiys :  "It  would  intro- 
duce a  new  and  very  dunfjeious  element  into  the  <jueslion  to 
say  that  the  jury  must  decide  whether  the  defendant  had  rea- 
sonable grounds  for  his  belief."  Of  course,  the  facts  may  be  so 
strong  that  the  defendant  could  hardly  have  been  mistaken,  but 
that  (lucstion  is  for  the  jury.  See  (irahani  v.  Ilolliiii^cr,  4()  I'enn. 
St.  55;  McKown  v.  Furgason,  47  la.  G3)».  IJut  sec  Sims  r. 
Eiland,  57  Miss.  007,  scmlde  eontrn.  in  Lord  r.  (Joddaid,  13 
How.  (U.  S.)  lOS,  the  judge  had  instructed  the  jury,  that  "if 
the  defendants  in  the  ease  did  not  make  the  recommendation 
upon  such  authority  or  information  as  you  may  think  .  .  .  they 
ought  to  have  acted  upon,  you  will  charge  them."  This  was 
held  error.  To  the  same  effect  is  Tryon  v.  Whitmarsh,  1  Met. 
1.  The  question  for  the  jury  is,  in  fact,  as  to  the  good  faith  of 
the  defendant  ;  Cowley  v.  Smyth,  40  N.  .J.  L.  3S().  if  the  tUfciid- 
ant  had  )ut  reason  for  believing  in  the  truth  of  his  statement, 
his  actual  belief  is  innnaterial  where  he  speaks  as  of  his  own 
knowledge;  Cabot  v.  Christie,  4:^  \  i.  \1\\  i'isher  v.  Mellen, 
103  Mass.  503;  Litchfield  v.  Hutchinson,  117  Mass.  105;  Cole 
V.  Cassidy,  138  Mass.  437;  Allen  v.  Hart,  72  111.  104. 

The  case  of  Cowley  v.  Smyth,  xupra,  points  out  a  distinction 
to  be  observed,  in  holding  a  defendant  for  a  statement  as  of  his 
own  knowledge,  between  cases  in  which  the  fact  re[)resented  is 
susceptible  of  knowledge,  and  cases  in  which  the  statement 
must,  notwithstanding  its  form,  be  intended  merely  to  express 
an  opinion.  In  cases  in  which  the  representation  was  not  false, 
to  the  defendants  knowledge,  the  court  say:  "The  piol)ative 
force  and  effect  of  the  evidence  to  establish  the  fraudulent  in- 
tent wdll  depend  upon  the  circumstances  of  the  particular  case. 
This  question  is  presented  in  a  comj)lex  form  when  the  defend- 
ant has  added  to  a  representation  which  turns  out  to  be  untrue, 
but  was  not  false  to  his  knowledge. — -an  allirmation  that  he 
made  the  representation  as  of  his  own  knowledge.  In  such 
cases  the  force  and  effect  of  the  evidence  will  depend,  in  a  great 
measure,  upon  the  nature  of  the  subject  concerning  which  the 
representation  was  made.  If  it  be  with  respect  to  a  specific  fact 
or  facts  susceptible  of  exact  knowledge,  and  the  subject-matter 
be  such  as  that  the  affirmation  of  knowledge  is  to  be  taken  in 
its  strict  sense,  and  not  merely  as  a  strong  expression  of  belief. 


PASLEY   V.   FREEMAN. 


1333 


the  falsehood  in  such  a  representation   Kes  in  the  defendant's 
affirmation  that  he  had  the  requisite  knowledge  to  vouch  for 
the  truth  of  his  assertion.  .  .  .     But  when  the  representation  is 
concerning  a  condition  of  affairs  not  susceptible  of  exact  knowl- 
edge, such  as  representations  with  respect  to  the  credit  and  ' 
solvency  of  a  third  person,  or  the  condition  or  credit  of  a  finan- 
cial institution,  the  assertion  of  knowledge,  as  was  held  in  Hay- 
craft  V.  Creasy,  '  is  to  be  taken  secundum  subjecfam  materiam, 
as  meaning  no  other  than  a  strong  belief  founded  on  what  ap- 
peared to  the  defendant  to  be  reasonable  and  certain  grounds.' 
In  such  a  case  the  question  is  wholly  one  of  good  faith.     The 
form  of  the  affirmation  will  cast  the  burden  of  proof  on  the 
defendant ;  but  when  the  evidence  is  in,  the  issue  is  Avhether 
the  defendant  honestly  believed  the  representation  to  be  true. 
In  support  of  such  an  issue  the  defendant  may,  by  way  of  ex- 
culpation, resort  to  evidence  not  admissible  in  actions  for  other 
kinds  of  deceit.     He  may,  as  in  Haycraft  v.  Creasy,  give  evi- 
dence that  the  person  whose  ability  he  affirmed  hved  in  a  style, 
and  with  such  appearances  of   property  and  means,   as   gave 
assurances  of  affluence.     He  may  give  in  evidence  the  informa- 
tion he  had  upon  the  subject  (Shrewsbury  v.  Blount,  2  M.  &  G. 
475),  and  show  the  general  reputation  for  trustworthiness  of 
the  person  whose  credit  he  affirmed ;  Sheen  v.  Bumpstead,  2  H. 
&  C.  193.     In  fine,  he  may  avail  himself  of  any  evidence  which 
may  tend  to  show  good  faith  or  probable  grounds  for  his  belief, 
leaving  the  question  to  be  determined,  upon  all  the  evidence, 
whether  his  conduct  was  bond  fide,  —  whether,  at  the  time  he 
made  the  representation,  he  honestly  believed  that  his  represen- 
tation was  true."     To  the  same  effect.  Page  v.  Bent,  2  Met.  371. 
It  is  obvious,  however,  that  while  a  representation  as  to  value 
or  the  solvency  of  another,  no  matter  how  strongly  stated,  must 
remain  a  matter  of  opinion,  and  hence  will  render  the  defendant 
liable  only  if  not  believed  by  him,  or  if  recklessly  made  without 
any  ground  whatever  for   his  belief,  a  representation  of   this 
character  may  be  made  in  such  a  form  as  to  justify  the  inference 
that  the  opinion  is  based  upon  facts  known  to  the   defendant, 
which  have  led  him  to  the  opinion  expressed.     In  such  a  case, 
unless  facts  of  the  kind  are  known  to  the  defendant,  he  will  be 
liable  in  the  same  way  as  he  would  be  if  the  representation  had 
been  of  a  matter  of  fact ;  Marsh  v.  Falker,  40  N.  Y.  662,  pp. 
566  et  seq. ;  Doty  v.  Campbell,  1  How.  Pr.  N.  S.  101. 


1334  PAsi.Kv   V.   1  i:i:i:man. 

Liability  not  dependent    on  a  benefit   to   the   defendant.  —  It  is 

not  lUTi's.sHi  V,  in  t»i»U'r  to  rt-mliT  our  liiihlc  tor  a  m is n* presenta- 
tion, that  he  shonkl  liave  (U'rived  a  U-nelit  from  it,  or  that  ho 
shouhl  have  actually  intemled  to  <letiau«l  the  plaintitT;  I'atteli 
V.  (Jnrney,  IT  Mass.  iMl  ;  Sehwenk  r.  Naylor,  lO'J  N.  V.  Gm:J  ; 
IJoyd's  10xeeut(trs  v.  Browne,  ♦)  I'enn.  St.  'MiK  '"  N«>  motive  for 
a  representation  whieli  is  false  ami  may  ))<■  injurious  ean  l)e 
good;  and  a  lie  to  help  a  frien<l  is  not  the  less  ix  lie  lieeause  it 
is  not  designed  to  injure  the  person  to  whom  it  istohl;  it  is 
enough  to  stamp  it  with  the  character  of  actual  fraud,  that  it 
may  lend  him  to  a  lisk  whi«-h  he  would  otherwise  shnn ;"  Hokeo 
r.  Walker,  14  Penn.  St.  i:i'.>;  Allen  v.  Addington,  7  Wend.  0, 
2-2;  Patten  r.  (lunu'y,  17  Mass.  Isii;  Hart  r.  Tallmadge,  "J  Day 
3M1 ;  i:nd>lcy  r.  .lohns,  120  111.  4t;:>;  Cowley  v.  Smyth,  4«;  N.  .1.  L. 
3S0.  If  the  defendant  int»'n<lcd  to  derive  a  U-netit  from  the 
mi.srepresentation,  the  courts  are  much  more  inclined  to  regard 
it  as  fraudulently  made  than  where  there  is  no  such  intention, 
and  they  will  not  always  insist  in  siuh  cases  on  proof  of  the 
defendant's  knowledge  of  the  falsity  of  his  statement ;  lieelie  r. 
Knapi>,  lis  Mich.  53,  7G. 

Who  may  sue.  —  ( )ne  who  makes  a  misrepresentation  must, 
to  render  himstdf  liable,  have  ma<le  it  with  the  intention  that  it 
shall  he  acted  on,  hy  the  person  to  whom  it  is  made,  or  to  whom 
he  intended  it  should  he  lommunieated,  and  he  is  therefore 
responsible  to  such  persons  oidy,  as  it  was  intended  for.  "  When 
statements  are  made  for  the  express  purpose  of  influencing  the 
acti«>n  of  another,  it  is  to  be  assumed  tliey  are  made  dclil)er- 
ately  and  after  due  inquiry,  and  it  is  no  hardship  to  hold  the 
l)arty  making  them  to  their  truth.  But  lie  is  morally  account- 
able to  no  person  whomsoever  but  the  very  person  he  seeks  to 
influence,  and  whoever  may  overhear  the  statements  and  go 
away  and  act  upon  them  can  reasonably  set  up  no  claim  to 
having  been  defrauded  if  they  prove  false  ; "  Cooley  on  Torts, 
*  493 ;  Rawlings  v.  Bean,  80  Mo.  614. 

It  was  accordingly  held  in  McCracken  v.  West,  17  Ohio  1(3, 
a  case  in  which  the  defendant  had  addressed  a  letter  of  recom- 
mendation to  one  person  which  had  been  presented  to  and  relied 
on  by  another,  that  the  latter  had  no  right  of  action.  But  a  rep- 
resentation may  be  made  with  a  view  to  its  being  acted  on  by 
any  one  of  a  class,  and  to  recover  in  such  a  case  the  plaintiff 
need  only  bring  himself  A\athin  the  class  ;  Allen  v.  Addington, 


PASLEY    V.    FREEaiAN.  1335 

7  Wend.  9  ;  same  case  on  appeal,  11  Wend.  374 ;  Clopton  v. 
Cozart,  13  Sm.  &  M.  363 ;  Carvill  v.  Jacks,  43  Ark.  454.  It  is 
immaterial  whether  the  statement  be  made  directly  to  plaintiff 
or  to  a  third  person  with  the  intent  that  he  repeat  it  to  the 
plaintiff;  Watson  v.  Crandall,  78  Mo.  583.  It  is  on  these  prin- 
ciples that  a  person  making  a  false  and  fraudulent  statement  to 
a  commercial  agency,  for  the  purpose  of  having  it  communicated 
to  any  one  interested  in  his  pecuniary  responsibility,  renders 
himself  liable  to  any  inquirer  who  relies  on  the  report  based  on 
his  statement;  Eaton  v.  Avery,  83  N.  Y.  31;  Genesee  Co. 
Savings  Bank  v.  Michigan  Barge  Co.,  52  Mich.  164 ;  Holmes  v. 
Harrington,  20  Mo.  Appeals  661;  Macullar  v.  McKinley,  49 
N.  Y.  Super.  Ct.  5 ;  aff'd.  99  N.  Y.  358 ;  Goodwin  v.  Goldsmith, 
49  N.  Y.  Super.  Ct.  101. 

In  Williams  v.  Wood,  14  Wend.  126,  it  was  held  that  where 
the  defendant  gave  a  recommendation  to  an  insolvent,  he  was 
liable  to  any  one  that  relied  on  it  to  his  injury,  and  that  the 
defendant  could  not  show  that  it  was  given  to  enable  the  per- 
son recommended  to  make  a  particular  purchase.  The  decision 
may  be  regarded  as  correct  on  the  ground  that  the  recommen- 
dation was  a  general  one  on  its  face,  and  there  was  nothing  to 
lead  plaintiff  to  believe  that  it  was  not  intended  for  him  as  well 
as  for  another.  This  distinguishes  the  case  from  McCracken  v. 
West,  supra.  But  in  Addington  v.  Allen,  11  Wend.  374,  at 
p.  383,  Chancellor  Walworth  queries  whether  a  person  giving 
a  false  recommendation  can  be  made  liable  to  any  one  except 
the  person  for  whom  the  recommendation  was  intended. 

Plaintiffs  reliance  on  representation.  —  The  plaintiff  in  order  to 
recover  for  the  deceit  must  prove  that  he  acted  in  reliance  on 
the  representation;  Nye  v.  Merriam,  35  Vt.  438;  Hagee  v. 
Grossman,  31  Ind.  223 ;  Humphrey  v.  Merriam,  32  Minn.  197 ; 
Runge  V.  Brown,  37  N.  W.  Rep.  (Neb.)  660.  If  he  was  cogni- 
zant of  the  falsity  of  the  representation,  or  did  not  believe  it, 
he  cannot  recover,  for  in  that  case  he  has  not  been  deceived  ; 
Clopton  V.  Cozart,  13  Sm.  &  M.  363 ;  Proctor  v.  McCoid,  60  la. 
153 ;  Nelson  v.  Luling,  62  N.  Y.  645 ;  Bowman  v.  Carithers,  40 
Ind.  90 ;  Anderson  v.  Burnett,  5  Miss.  165 ;  Edick  v.  Crim,  10 
Barb.  445  ;  and  the  plaintiff  must  prove  affirmatively  that  he  did 
believe  the  statement  and  relied  on  it ;  Humphrey  v.  Merriam, 
32  Minn.  197 ;  therefore  if  the  plaintiff  investigated  the  facts 
concerning  which  the  representation  was  made,  he  cannot  be 


ItJSG  iA>t.i.\    \.    I  i:i:i:.MAN. 

siiicl  to  luive  rt'lit'<l  on  ihr  ivpreseiitutioii,  aiul  caiiiu>t  reoover; 
Iliigee  r.  ( Jrossinaii,  ol  Iiul. --">;  Poland  r.  lirowiU'll,  l-'H  Mass. 
13H;  Tuck  r.  Downin*,',  Tti  111.  71  :  AikI.tsoii  r.  Me  Pike,  MO  Mo. 
293.  11  tlu'  (left'iulant  has  niadf  a  niisifpifsfiitatiun,  luul  ha.s 
also  givon  a  wananty,  hu  is  not  liable  for  the  deceit  if  the  jdaiii- 
tift'  relied  on  the  wananty,  and  not  on  the  lepresentations ; 
Iloldoni  r.  Ayer,  110  111.  44H ;  Humphrey  r.  Merriam,  3:i  Minn. 
l'J7  ;  nor  is  he  liable  if  the  plaintitY  was  not  induced  by  tlie  rep- 
resentation to  act.  in  Minj^  v.  \Voi)lfolk,  110  V.  S.  51>l),  it 
appeared  that  the  plaintiff  would  havt*  acted  as  he  did  in  the 
absence  of  any  iepresentati<»n  on  the  part  of  tlu'  di-fciid.iMt.  and 
lie  was  therefore  not  allowed  to  recover.  It  is  not  lu'ccssary, 
however,  as  stated  ttii/mi,  that  the  false  representation  shoid<l 
have  been  the  sole  inducement  that  influenced  the  plaintitT;  if 
it  inlluenced  his  comhut  materially,  he  «-an  recover.  Where 
the  person  deeeiveil  has  learned  of  the  falsity  of  the  statements 
made,  l)efore  the  completion  of  his  negotiations,  and  while  he  is 
still  at  lilxuty  to  withdraw,  he  cannot  hold  tlu'  defendant  for 
the  misrepresentation;  Whitini,'  '•.  Hill,  '2'\  Mich.  *i*.»!» ;  Vernol 
r.  Vernol,  '58  N.  Y.  4"). 

Not  every  representation  may  be  relied  on.  —  There  an*  many 
eases  in  which  the  person  deceived  cannot  recover,  for  the  rea- 
son that  common  prudence  should  have  taught  him  to  distrust 
the  statement  made  to  him,  i-ithcr  because  of  the  form  in 
which  it  was  made,  or  because  of  the  relations  between  himself 
and  the  person  making  the  statement.  If  the  statement  iw 
made  implies  that  the  speaker  has  doubts  of  its  correctness,  or 
if  in  any  other  way  the  person  to  whom  the  representation  is 
made,  is  put  upon  imiuiry,  he  must  not  rely  on  the  representa- 
tion. 

"Dealer's  talk." — A  person  who  is  negotiating  with  another 
must  not  put  entire  confidence  in  the  statements  which  are 
made  to  him.  He  knows  that  it  is  to  the  interest  of  the  i)erson 
with  whom  he  is  dealing  to  drive  as  good  a  bargain  as  he  can, 
and  lie  must  guard  against  being  misled.  Tlie  courts  have 
always  permitted  what  is  known  as  "dealer's  talk."  It  is  a  gen- 
eral rule  that  as  between  parties  who  are  negotiating,  an  expres- 
sion of  opinion  as  to  the  value  or  utility  of  an  article  to  be  sold, 
or  as  to  the  advantage  to  be  derived  from  making  the  contract, 
will  not  render  the  person  making  it  liable.  The  uniformity  of 
the  decisions  to  this  effect  has  given  rise  to  the  erroneous  im- 


PASLEY    V.    FKEEMAN.  1337 

pression  that  a  person  can  in  no  event  be  held  liable  for  a  fraud- 
ulently false  opinion.  But  this  class  of  cases  goes  entirely  on 
the  ground  that  the  person  deceived  had  no  right  to  rely  on 
statements  made  by  one  whose  interests  were  antagonistic  to 
his.  The  cases  in  which  this  has  been  held  are  not  confined  to 
those  in  which  there  has  been  an  expression  of  opinion.  Many 
cases  in  which  facts  have  been  misrepresented,  with  a  view  to 
deceive,  have  held  the  purchaser  to  be  remediless.  There  is 
much  conflict  in  the  authorities  as  to  what  misstatements  of 
facts  are  actionable  ;  but  none  where  there  has  been  merely  an 
expression  of  opinion. 

Statements  as  to  value.  —  That  a  statement  of  the  value  of 
property  made  by  the  vendor  to  the  vendee  must  not  be  relied 
on,  is  uniformly  held ;  Ellis  v.  Andrews,  bQ  N.  Y.  83  ;  Bristol 
V.  Braidwood,  28  Mich.  191 ;  Sieveking  v.  Litzler,  31  Ind.  13 ; 
Anderson  v.  McPike,  86  Mo.  293 ;  Walker  v.  Mobile,  &c.,  R.  R. 
Co.,  34  Miss.  245 ;  Medbury  v.  Watson,  6  Met.  259 ;  Hunter  v. 
McLaughlin,  43  hid.  38 ;  Kimball  v.  Bangs,  144  Mass.  321 ;  cf. 
Chrysler  v.  Canaday,  90  N.  Y.  272 ;  McAleer  v.  Horsey,  35  Md. 
459. 

In  Ellis  V.  Andrews,  supra,  Judge  Grover  says :  "  Upon  the 
question  of  value  the  purchaser  must  rely  upon  his  own  judg- 
ment, and  it  is  his  folly  to  rely  upon  the  representation  of  the 
vendor  in  that  respect;  but  in  regard  to  any  intrinsic  fact 
affecting  the  quality  or  value  of  the  subject  of  the  contract,  he 
may  rely  upon  the  assurances  of  the  vendor,  and  if  he  does  so 
rely  and  the  assurances  are  fraudulently  made  to  induce  him  to 
make  the  contract,  he  may  have  an  action  for  the  injury  sus- 
tained." The  distinction  pointed  out  between  a  bare  statement 
of  the  value,  and  statements  of  fact  by  which  the  vendor  seeks 
to  show  the  correctness  of  his  opinion,  is  generally  acknowl- 
edged ;  Sieveking  v.  Litzler,  31  Ind.  13 ;  Grim  v.  Byrd,  32 
Gratt.  293  ;  McAleer  v.  Horsey,  35  Md.  439  ;  Stewart  v.  Stearns, 
63  N.  H.  99 ;  Weidner  v.  Phillips,  39  Hun  1.  An  opinion  as 
to  the  productiveness  of  land  will  not  lay  the  foundation  for 
an  action ;  Mooney  v.  Miller,  102  Mass.  217 ;  Gordon  v.  Par- 
melee,  2  Allen  212  ;  nor  as  to  its  quality  ;  Sherwood  v.  Salmon, 
2  Day  128. 

But  if  the  seller  induce  the  buyer  not  to  make  inquiries  as  to 
the  value,  he  may  be  liable  for  a  misrepresentation  of  value ; 
Hanger  v.  Evins,  38  Ark.  334 ;  Weidner  v.  Phillips,  39  Hun  1 ; 


liJii8  I'ASLKY     v.     KICKKMAN. 

Stewart  v.  Stearns,  03  N.  II.  i>9.  So  if  the  value  of  the  thing 
sold  c'lm  only  he  known  to  experts,  the  pureluuser  may  rely  on 
the  value  exi)re.ssi(l  l»y  the  seller,  if  he  is  a  dealer  in  sueh  goods; 
Pieard  r.  .M((  Ornutk,  U  Mieh.  08  ;  Kost  r.  Bender,  2.>  Mich, 
f)!.');  Il;iML,Mr  V.  ICvins,  liH  Ark.  •VAA  :  McKt'c  i\  lCatt)n,  20  Kas. 
220;  <■/.  Alien  i\  Hart,  72  111.  104.  An  cvaininatinn  of  the 
cases  in  whirh  n)is.statenients  ni /net  have  l>een  niatlr,  shows  them 
to  l)e  in  direct  eoidliit  with  eaih  other.  In  some  lases  it  is  held 
that  an  action  will  lie  for  a  fraudulent  statement  of  the  nundier 
of  acres  which  a  piece  t>f  land  contains;  Whitney  v.  Allaire,  1 
N.  Y.  aOf);  Ileardsley  c.  Dunlley,  OH  N.  V.  .•)T7  ;  Starkweather 
r.  Benjamin,  ;J2  Mich.  oO."> ;  Coon  r.  Atwell,  40  N.  II.  olO ; 
Sancrster  r.  I'rather,  34  Ind.  004;  Hill  r.  lirower,  7«;  .N  (  .  124; 
while  olluT  cases  sujtpoit  tlieopjiosite  vii'W  ;  (inrdon  r.  I'armelee, 
2  Allen  212;  Mo..niy  '•.  .Miller,  102  .Mass.  217;  Credle  v. 
Swindill,  «;:}  N.  ('.  30.').  In  Slierw(.od  v.  Salmon,  2  Day  128,  it 
was  held  that  a  fraudidciit  representation  by  the  vendor  of  the 
situation  of  the  land  creat»-d  no  liahility,  even  if  the  vendee  had 
no  o[)[)ortunity  of  examination. 

It  is  hi'ld  in  s(»me  cases  that  a  statement  of  the  price  {)aid  by 
the  vt'udor  for  what  he  is  selling  iloes  not  ien<ler  him  liable  if 
false  and  fraudident ;  Ilolbrook  v.  Connor,  00  Me.  .')78 ;  Bishop 
V.  Small,  (!3  Me.  12;  Cooper  r.  Lovering,  lOO  Mass.  77  ;  Med- 
bury  r.  Wat.son,  0  Met.  240;  Mooney  v.  Miller,  102  Mass.  217; 
while  the  contiary  is  held  in  Ives  v.  Carter,  24  C'onn.  392; 
]\IcFadden  r.  Hobison,  3")  Ind.  24;  (Jreen  v.  Bryant.  2  Kelly 
60;  Van  Epps  /-.  llarri-^on,  .">  Hill  63;  McAleer  v.  Hoi*sey,  35 
Md.  430;  Somers  v.  Ilichards,  4(»  \'t.  170.  The  difference  here 
may  be  due  to  the  view  the  courts  take  of  the  materiality  of 
such  a  statement. 

No  action  unless  damage.  —  No  action  will  lie  unless  the 
plaintiff  can  prove  liis  ilaniages ;  Ming  v.  Woolfolk,  110  U.  S. 
699;  Freeman  v.  McDaniel,  23  Ga.  354  ;  Fuller  v.  Ilodgden,  25 
^le.  243 ;  Danforth  v.  Cushing.  77  Me.  182 ;  Runge  v.  Brown, 
37  N.  W.  Rep.  (Neb.)  000 ;  W^emple  i'.  Hildreth,  10  Daly  481 ; 
Byard  v.  Holmes,  34  N.  J.  290  ;  Nye  r.  Merriam,  35  \'t.  438. 

Liability  of  directors  for  fraudulent  prospectus.  —  "  llie  direc- 
tors of  a  company  who  knowingly  issue  or  sanction  the  circu- 
lation of  a  false  prospectus,  containing  untrue  statements  of 
material  facts,  the  natural  tendency  of  which  is  to  mislead  and 
deceive  the  community,  and  to  induce  the  public  to  purchase 


PASLEY    V.    FREEMAN.  1339 

its  stock,  are  responsible  to  those  who  are  injured  thereby ; " 
Morgan  v.  Skidcly,  62  N.  Y.  319 ;  Terwilliger  v.  Great  West. 
Tel.  Co.,  59  111.  249 ;  Cross  v.  Sackett,  6  Abb.  Pr.  247 ;  cf.  also 
Fenn  v.  Curtis,  23  Hun  384;  Booth  v.  Wonderly,  36  N.  J.  L. 
250 ;  Paddock  v.  Fletcher,  42  Vt.  389.  The  officers  of  a  corpo- 
ration are  liable  in  the  same  manner  for  publishing  a  false  report 
of  the  condition  of  the  corporation,  to  any  one  injured  by  rely- 
ing on  the  same ;  Morse  v.  Swits,  19  How.  Pr.  275. 

Statement  of  one's  own  solvency.  —  There  remain  for  consid- 
eration some  questions  in  regard  to  the  action  for  fraudulent 
representations  of  solvency.  It  is  held  in  some  cases  that,  as 
between  contracting  parties,  a  statement  by  one  of  his  solvency 
is  not  a  representation  on  which  the  other  can  rely ;  Lyons  v. 
Briggs,  14  R.  I.  222 ;  Jude  v.  Woodburn,  27  Vt.  415.  But  such 
a  statement  regarding  one's  own  solvency  is  to  be  regarded  as  a 
statement  of  facts,  and  the  better  view  would  seem  to  be  that 
an  action  will  lie  in  the  case  mentioned. 

Meaning  of  "  solvency."  —  A  representation  of  solvency  means 
that  the  debtor  is  able  to  meet  all  his  obligations,  not  merely 
the  one  incurred  on  the  strength  of  the  representation ;  Daniels 
V.  Dayton,  49  :\Iich.  137 ;  McKown  v.  Furgason,  47  la.  636.  It 
does  not  mean  that  the  debtor  has  sufficient  property  subject  to 
execution  to  meet  all  his  obligations ;  McKown  v.  Furgason, 
supra;  Einstein  v.  Marshall,  58  Ala.  153. 

It  is  not  essential  to  the  maintenance  of  the  action,  that  a 
judgment  should  have  been  obtained  against  the  debtor  and 
execution  issued  against  his  property ;  Winter  v.  Baudel,  30 
Ark.  362  ;  nor  is  it  necessary,  in  fact,  that  an  action  should  have 
been  brought  for  the  collection  of  the  debt  before  suing  for  the 
deceit ;  Kidney  v.  Stoddard,  7  Met.  252 ;  cf.  Weeks  v.  Burton, 
7  Vt.  67 ;  Tryon  v.  Whitmarsh,  1  Met.  1. 

Rule  of  damages.  —  Where  one  has  parted  with  property  on  a 
fraudulent  misrepresentation  of  the  vendee's  solvency,  the  true 
measure  of  damages  would  seem  to  be,  not  the  price  agreed  to 
be  paid,  but  the  value  of  the  property  at  the  time  of  the  sale,  not 
exceeding  the  price  agreed  on ;  Crews  v.  Dabney,  7  Littell 
(Ky.)  278 ;  cf.  Spikes  v.  English,  4  Strobh.  34 ;  Home  v.  Wal- 
ton, 117  111.  141 ;  but  vld.  Sibley  v.  Hulbert,  15  Gray  509. 

Objections  against  Pasley  V.  Freeman.  —  The  objections  which 
have  been  urged  against  Pasley  v.  Freeman  have  been,  (1)  that 
the  allowance  of  the  action  involves  a  violation  of  the  principle 


1340  PASLKY     V.     rUKK.MAN. 

of  the  Statute  of  Fnuuls  ;  (li)  ili;it  the  representation  of  the 
linancial  responsibility  of  another  is  not  a  matter  suseeptil>le  of 
knowledge,  and  must  in  the  very  nature  of  things  lie  hut  the 
expression  of  a  matter  of  oj)inion.  The  latter  ohjection  has 
been  dealt  with  already. 

The  Statute  of  Frauds  does  not  apply. —  The  objection  that  the 
case  comes  within  the  spirit  of  the  Statute  of  Fraiuls  is  clearly 
untenable.  That  deals  exclusively  with  contraets,  while  tins 
action  is  founded  on  tort,  and  a  recovery  in  this  elass  of  eases 
does  not  prevent  the  plaintiff  reeovering  anew  from  the  debt«)r; 
Wise  V.  Wilcox,  1  Day  22;  IJoyd's  Kxeentors  r.  lirowne,  0  I*»'nn. 
St.  310.  In  Upton  V.  Vail,  «;  .Johns.  iMl,  Kent,  ('.  .1.  «lealing 
with  this  objection,  says:  "This,  I  apprehend,  is  an  objection 
arising  from  public  policy  and  expediency;  for  it  is  certain  that 
the  Statute  of  Frauds  as  it  now  stands  has  nothing  to  do  with 
the  case." 

Statutory  enactments  requiring  the  representation  to  be  in  vrrit- 
ing. — This  view  is  universally  accepted,  and  in  accordanie 
with  the  idea  that  the  case  comes  within  the  mischief  of  the 
Statute  of  Frauds,  tliat  h;is  been  cxti'iided  by  enactment  to 
cover  the  action  for  misrepresenting  another's  financial  condition. 

The  following  states  have  provisions  recjuiring  repiesenta- 
tions  concerning  the  credit  of  another  to  be  in  writing,  in  order 
to  bind  the  person  making  them;  Alabama  (Code,  §  1734); 
California  (Ilittcll's  Cod.  §  111»T4)  ;  Idaho  (Rev.  Stat.  §  0011)  ; 
Indiana  (Rev.  Stat.  §  4VM)0)  ;  Kentucky  (Gen.  Stat.  chap.  22, 
§  1)  ;  Maine  (Rev.  Stat.  1883,  chap.  Ill,  §  3)  ;  Massachusetts 
(Public  Stat.  chap.  78,  §  4);  Michigan  (How.  Annot.  Stat. 
§  6188)  ;  Missouri  (Rev.  Stat.  1870,  §  2515)  ;  Oregon  (Anno- 
tated Laws,  §  786)  ;  South  Carolina  (Gen.  Stat.  1882,  §  2024)  ; 
Utah  (C.  Civ.  P.  §  1210);  Vermont  (Rev.  Laws  1880,  §  983); 
Virginia  (Code,  §  2840,  1)  ;  West  Virginia  (Amd.  Code  1884, 
§  98,  1)  ;  Wyoming  (Rev.  Stat.  1887,  §  1249,  6). 

Application  of  the  statute.  —  But  notwithstanding  the  statute, 
it  is  held  in  Kentucky  that  in  "any  case  of  actual  fraud,  in  wan- 
tonly misrepresenting  a  man's  credit,"  there  need  be  no  writing 
any  more  than  in  case  of  any  other  kind  of  fraud  in  fact ;  and 
that  it  is  "not  actually  fraudulent  to  afifirm  absolutely  as  true 
that  which  the  asserter  believes  to  be  true.  The  mains  animus 
is  the  essential  and  distinctive  element  of  actual  fraud;"  Warren 
V.  Barker,  2  Duv.  155 ;  cf.  Ball  v.  Farley,  81  Ala.  288. 


PASLEY    V.    FREEMAN.  1341 

In  Massachusetts,  on  the  other  hand,  it  is  hekl  that  the  stat- 
ute applies  so  long  as  the  intent  is  to  induce  the  plaintiff  to 
give  credit  to  a  third  party  ;  Mann  v.  Blanchard,  2  Allen  386 ; 
Wells  V.  Prince,  15  Gray  562 ;  Kimball  v.  Comstock,  14  Gray 
508 ;  and  it  is  immaterial  that  the  defendant  had  an  ulterior 
motive  in  making  the  misrepresentation,  and  expected  to  derive 
a  benefit  from  the  plaintiff's  giving  the  credit.  In  Kimball  v. 
Comstock,  siqv'a,  the  defendant  had  induced  plaintiff  to  sell  to 
the  debtor,  with  a  view  of  satisfying  a  demand  held  by  the  defend- 
ant against  the  debtor,  out  of  the  goods  sold.  Yet  it  was  held  to 
be  within  the  statute.  To  the  same  effect  are  Mann  v.  Blan- 
chard, supra  ;  Wells  v.  Prince,  supra  ;  Cook  v.  Churchman,  104 
Ind.  141 ;  Hunter  v.  Randall,  62  Me.  423.  But  the  statute  will 
not  apply  unless  the  representation  is  made  with  a  view  to 
induce  the  plaintiff  to  give  credit  to  another.  Where,  there- 
fore, the  defendant  represented  the  maker  of  a  note  held  by 
him  to  be  solvent,  and  thereby  induced  plaintiff  to  accept  it  as 
collateral  security  for  a  debt  owing  by  defendant  to  plaintiff, 
the  statute  was  held  to  have  no  application  ;  Belcher  v.  Costello, 
122  Mass.  189.  In  Michigan  the  statute  was  held  not  to  apply 
in  a  similar  case  ;  Huntington  v.  Wellington,  12  Mich.  10.  See, 
also,  Lenheim  v.  Fay,  27  Mich.  70 ;  cf.  St.  John  v.  Hendrick- 
son,  81  Ind.  351. 

In  Bush  V.  Sprague,  51  Mich.  41,  it  was  held  that,  in  an 
action  for  conspiracy,  the  statute  did  not  prevent  parol  repre- 
sentations of  another's  solvency,  being  put  in  evidence  to  prove 
the  conspiracy.  The  case  of  Cook  v.  Churchman,  104  Ind.  141, 
is  apparently  in  conflict  with  this. 

These  statutes  of  doubtful  expediency.  —  The  policy  of  these 
statutes  may  well  be  doubted.  In  Ewins  v.  Calhoun,  7  Vt.  79, 
the  court  say :  "  That  the  evidence  of  contracts  which  require 
mutual  consent  should  be  required  to  be  in  writing,  or  have  any 
other  prescribed  formalities,  is  practicable  at  least,  and  may  be 
useful.  But  that  the  proof  of  facts  which  constitute  fraud  or 
crime  should  be  so  privileged,  would  exempt  most  offenders. 
To  undertake  to  prevent  fraud,  by  supposing  all  verbal  com- 
munications false,  would  destroy  all  confidence  in  business  and 
in  society." 


DOE   d.    KK.iGE    V.    BELL. 


,\/fc/f  —:]i  GEO.  3. 

[UKroltTK.I»  !">  T.  It.  471.] 

If  a  landlord  lease  for  Hfren  i/fiin<  /-//  parol,  and  ar/ree  that  the 
tenant  shall  enter  at  Ladif-ility,  and  <juit  at  Candlemas,  thouijh 
the  lease  be  void  by  the  Statute  of  Frauds  as  to  the  duration  of 
the  term,  the  tenant  holds  under  the  terms  of  the  lease  in  other 
respects ;  and  therefore  the  landlord  can  only  put  an  end  to  the 
tenancy  at  Candlemas. 

Tui^  ejt'ctmeiit  was  on  the  demise  of  T.  Hippie,  puiinliaii  of 
IL  ami  M.  \\\'j!;<j;v,  infants.  At  the  trial  at  the  hist  a.ssi/es  at 
York,  before  the  Lord  Chief  Baron,  it  ajtpeared,  that  in  January, 
1790,  Wilkinson,  as  ai^'cnt  for  the  le.s.sor  of  the  plaintiff,  let  the 
farm  in  question,  ealled  IIa<.(ue\s  Farm,  to  the  defendant  for 
seven  years,  by  parol.  The  defendant  was  to  enter  when  the 
former  tenant  quitted,  namely,  on  the  land  at  old  Lady-day, 
and  the  house  on  the  25th  of  May  following;  and  he  was  to 
quit  at  Candlemas.  The  defendant  entered  accordingly,  and 
paid  rent.  A  notice  to  quit  at  Lady-flay  last  was  .served  on  the 
22nd  of  September,  1792.  It  was  also  proved  that  both  the 
daughters  of  the  lessor  of  the  plaintiff  were  above  fourteen. 

The  defendant's  counsel  objected,  first.  That  the  notice  to 
quit  was  insufficient ;  the  holding  being  from  Candlemas,  and 
the  notice  requiring  the  defendant  to  quit  at  Lady-day ;  2ndly, 
That  the  lessor  of  the  plaintiff  claimed  as  guardian  in  socage 
to  his  daughters,  who  were  both  above  the  age  of  fourteen. 
And  the  plaintiff  was  nonsuited. 

Chambre,  on  a  former  day,  obtained  a  rule,  calling  on  the 
defendant  to  show  cause  why  this  nonsuit  should  not  be  set 

1342 


DOE    D.    KIGGE    V.    BELL.  1343 

aside.  As  to  the  first  objection,  he  said,  this  was  a  hohling  from 
Lady-day,  and  that,  therefore,  the  notice  to  quit  was  regular ; 
and,  as  to  the  second,  he  produced  an  affidavit,  in  which  it  was 
stated  that  one  of  the  daughters  of  the  lessor  of  the  plaintiff 
was  under  fourteen  years  of  age. 

Coclcell,  Serjeant,  and  Walton,  were  now  to  have  shown  cause 
against  the  rule  ;  but 

Law,  Cliamhre,  and  Barrow,  were  desired  to  answer  the  first 
objection  ;  as  to  which  they  argued,  that  as  that  agreement  for 
seven  years  was  void  by  the  Statute  of  Frauds,  it  being  by  parol, 
the  defendant  must  be  considered  as  tenant  from  year  to  year, 
that  year  commencing  at  Lady-day,  when  he  entered ;  and  that 
consequently  the  notice  to  quit  at  Lady-day,  served  more  than 
half  a  year  before,  was  regular. 

Lord  Kenyon,  C.  J.  —  Though  the  agreement  be  void  by  the 
Statute  of  Frauds  as  to  the  duration  of  the  lease,  it  must  regu- 
late the  terms  on  which  the  tenancy  subsists  in  other  respects, 
as  to  the  rent,  the  time  of  the  year  when  the  tenant  is  to  quit, 
&c.  So  where  a  tenant  holds  over  after  the  expiration  of  his 
term  without  having  entered  into  any  new  contract,  he  holds 
upon  the  former  terms.  Now  in  this  case  it  was  agreed  that 
the  defendant  should  quit  at  Candlemas  ;  and  though  the  agree- 
ment is  void  as  to  the  number  of  years  for  which  the  defendant 
was  to  hold,  if  the  lessor  chose  to  determine  the  tenancy  before 
the  expiration  of  the  seven  years,  he  can  only  put  an  end  to  it 
at  Candlemas.  Rule  discharged. 

See  Richardson  v.  Gifford,  1  A.  &  E.  52 ;  Beale  v.  Sanders,  3 
Bing.  N.  C.  850. 


[This  and  the  succeeding  case,  with  tlie  notes  tliereto,  are  retained  in  tliis 
edition,  notwithstanding  the  case  of  Walsh  v.  Lonsdale,  cited  infra,  as  they 
deal  with  the  law  as  recognised  both  at  law  and  in  equity  prior  to  the  Judica- 
ture Acts,  and,  so  far  at  all  events  as  they  deal  with  the  position  of  a  tenant 
holding  over  after  the  expiration  of  a  term,  are  unaflected  by  that  decision. 

Before  the  Judicature  Act],  if  a  party  occiip[ied]  and  paid  rent  under  an 
agreement  for  a  term,  then,  although  such  agreement  [might]  not  operate  to 
create  the  proposed  term,  either  in  consequence  of  its  not  amounting  to  a 
lease,  as  in  Richardson  v.  Gifford,  1  A.  &  E.  52,  or  not  being  a  good  execution 
of  a  power,  as  in  Beale  v.  Sanders,  3  Bing.  N.  C.  850,  yet  the  party  so  occu- 
pying and  paying  rent  was  considered  as  holding  upon  all  the  terms  of  the 
agreement  not  inconsistent  with  a  tenancy  from  year  to  year,  such  as  the 
obligation  to  repair,  and  the  like.  See  Richardson  v.  Gifford,  and  Beale  v. 
Sanders.  So  in  Doe  d.  Thompson  v.  Amey.  12  A.  &  E.  476,  where  a  party 
entered,  and  paid  rent  under  an  agreement  for  a  future  lease  of  years,  which 


in44  DoK  I).   im(k;k  v.  ukll. 

was  to  contain  ft  covenant  not  to  take  successive  crops  of  corn,  with  a  contll- 
tioii  of  rc-fntry  for  hrt-ach  of  covenants,  it  was  held  that  ejectnient  nil:;ht  Ik; 
hroiiulit  upon  successive  crops  of  corn  helnj;  taken  by  the  tenant :  see  also 
Dof  (I.  (Hilirshnir  v.  Hn'ftrh,  tl  Ksp.  10(>;  [Tfwmnti  v.  I'lfkt-r,  I  II.  &.  X.  Jjr.'J ; 
Watiton  v.  Wnuil,  H  Kxch.  :{:$."• ;  anil  lifnnell  v.  Inland,  E.  B.  i  E.  l\2G].  In  I'ixlor 
v.  Ciilnr,  1»  M.  &  W.  'M'f,  a  tenant  entered  upon  a  copyhold  under  an  agree- 
ment for  a  lease  its  soon  its  thr  Innl's  linnrf  nmlil  lie  nhtitiiifil,  in  wideh  he  was 
to  covenant  to  repair.  No  licence  ever  was  obtained,  or  lease  made,  yet  held 
that  he  was  bouml  to  repair.  This  seems  a  stronj;  case,  [and  .see  Murtin  v. 
StnilU,  L.  U.  9  Ex.  50;  4:J  L.  J.  Ex.  4L';    H>i«  v.  Cole,  'M\  L.  T.  ♦ilH. 

In  Li'i'  V.  Smith,  0  Exch.  C.C'i,  a  tenant  entered  Into  the  possession  of  prem- 
ises iiii(l<r  an  a;;reement  in  writinir,  which  stipidated  for  a  longer  term  tlian 
three  years.  This  docuiiK'nt,  not  belnif  under  seal,  was  void  as  a  lease  by  tlie 
operation  of  the  H  &  1)  Vict.  c.  lOd.  The  rent  was  to  be  paid  i|uart«Tly,  and 
in  advance.  The  tenant  paid  rent  on  several  occasions,  l»ut  not,  in  fai-t,  in 
advance.  The  receipts,  however,  stateil  that  the  payments  wi-re  nuide  in 
advance.  It  was  lield,  that  althoui;h  the  airreenu-nt  was  void  under  the  stat- 
ute, tliere  was  sulllcieut  evidence  to  show  that  tlie  rent  was  payal)le  (piarterly 
in  advance.  "  .\lthou<;h  the  aun-ement  was  void,"  said  Haron  I'arke,  •■  as  not 
beinj;  under  seal,  as  ret|ulretl  by  tlie  M  &  '.»  Vict.  c.  lOtt,  there  was  ample  evi- 
dence that  the  party  In  (piestlon  consented  to  be  tenant  from  year  to  year 
upon  the  terms  that  the  rent  should  be  payable  at  the  bei;innini;  instead  of  at 
the  end  of  each  quarter."  The  presumption  which  arose  in  cases  of  this 
description,  from  the  fact  of  the  payment  of  rent,  was  the  .same  a;;ainst  a 
corporation  as  a;;aiust  ordinary  lessors.  Itur  d.  I'fnninijtnn  v.  Tnuifrt',  12 
Q.  B.  '.•:ts.] 

Tliere  [was]  this  peculiarity,  however,  in  the  tenancy  (Teated  by  payment 
of  rent  after  entry  under  an  ai;reement  for  a  lease,  or  a  void  lease,  that  al- 
thoti<;h  it  was  considered  a  teiuincy  from  year  to  year  during  the  continuancu 
of  the  term  proposed  to  be  granted  by  the  lease,  and  [could]  oidy  be  put  an 
end  to  by  the  landlord,  after  the  usual  notice,  Chuinnnn  v.  Tnwutr,  f.  M.  &  \V. 
100,  yet  it  [was]  determined  at  the  expiration  of  that  term,  without  any 
notice  to  quit.  Dor  d.  Tilt  v.  Strattioi,  4  Hiuu:.  44(!;  Ii>rr>'>j  v.  Liinlhif,  ;]  M.  & 
(ir.  511;  thoujrh  the  a<rreemeiit  under  which  the  tenant  entered  provided  for 
the  extension  of  the  term  specified  therein  upon  certain  conditions.  I^oe  d. 
Davenish  v.  Mnffntt,  1."j  Q.  li.  257. 

[Such  was  the  state  of  the  law  on  this  subject  prior  to  the  passing  of  the 
Judicature  Acts.  In  H'rt/.t/t  v.  Lonsdale,  21  Ch.  1).  I);  52  L.  J.  Ch.  2,  however, 
it  was  laid  down  by  Jesscl,  M.R.,  that  since  those  Acts  the  rule  no  longer 
holds  that  a  person  occupying  under  an  executor}-  agreement  is  only  made 
tenant  from  year  to  year  at  law  by  the  payment  of  rent,  but  that  he  is  to  be 
treated  in  every  court  as  holding  on  the  terms  of  the  agreement.  The  facts 
of  the  case  were  that  the  plaintitl'  hail  agreed  to  take  a  lease  from  the  defend- 
ant of  a  mill  for  seven  years  at  a  rent  of  30.-*.  a  year  for  each  loom  run,  the 
plaintitl"  not  to  run  less  than  540  looms.  The  lease  was  to  contain  such  stipu- 
lations as  were  inserted  in  a  certain  lease  referred  to  in  the  agreement. 
That  lease  provided  that  there  should  at  all  times  during  the  continuance  of 
the  demise,  except  in  the  last  year  of  the  term,  be  due  and  payable  in  ad- 
vance on  demand  one  whole  year's  rent  of  the  premises  demised  in  addition 
to  the  proportion,  if  any,  of  the  said  yearly  rent  due  and  unpaid  for  the 
period  previous  to  such  demand.  The  plaintitT  h.ad  l)een  let  into  posses- 
sion, aud  had  paid  rent  quarterly,  but  not  in  advance,  up  to  January  1st,  1881. 


DOE    D.    RIGGE    V.    EELL.  1345 

Before  the  next  quarter's  rent  became  due  the  defendant  demanded  a  year's 
rent  in  advance,  together  with  the  proportionate  part  of  the  rent  from  the 
1st  of  January,  and  on  tlie  plaintiff's  refusal  to  pay  it  put  in  a  distress  for  the 
amount.  In  an  action  in  the  Chancery  division  for  damages  for  illegal  dis- 
tress, an  injunction,  and  specific  performauce,  the  plaintiff  applied  for  an  in- 
terim injunction.  One  of  the  grounds  of  the  application  was  that  inasmuch 
as  the  rent  payable  depended  upon  the  number  of  looms  run,  there  could  be 
no  fixed  sum  payable  in  advance  as  rent,  but  assuming  the  rent  to  be  ascer- 
tained, it  was  further  argued  that  the  plaintiff  was  only  tenant  from  year  to 
year  on  such  of  the  terms  of  the  agreement  as  were  not  inconsistent  with 
such  a  holding,  and  that  the  clause  making  a  year's  rent  always  due  in  ad- 
vance was  obviously  inconsistent  with  a  tenancy  which  might  be  determined 
by  six  months'  notice.  Ery,  J.,  granted  the  injunction,  but  only  on  the  terms 
of  paying  the  whole  amount  of  rent  claimed  into  court.  This  decision  was 
affirmed  on  appeal,  with  a  slight  modification,  immaterial  to  the  present  ques- 
tion. The  court  did  not,  upon  an  interlocutor}'  proceeding,  finally  determine 
the  questions  in  the  action,  but  they  expressed  a  decided  opinion  that  the 
rights  of  the  parties  must  be  ascertained  by  reference  to  the  lease  as  it  ought 
to  be  framed  pursuant  to  the  contract  between  the  parties.  In  this  view 
there  was  nothing  to  prevent  the  lessor  exercising  then  the  same  right  of 
distress  which  he  would  have  acquired  had  the  lease  been  executed.  It  is  to 
be  observed,  however,  that  the  person  complaining  of  the  distress  was  him- 
self at  the  same  time  claiming  specific  performance  of  the  lease,  and  could 
not  therefore,  in  a  court  of  equity,  be  heard  to  complain  of  one  of  the  provis- 
ions in  an  agreement  which  he  was  himself  setting  up ;  and  this  appears  to 
be  the  ground  of  the  decision. 

Jessel,  M.R.,  says:  "There  is  an  agreement  for  a  lease  under  which  pos- 
session has  been  given.  Now,  since  the  Judicature  Act,  the  possession  is 
held  under  the  agreement.  There  are  not  two  estates,  as  there  were  for- 
merly, one  estate  at  common  law  by  reason  of  the  payment  of  the  rent  from 
year  to  year,  and  an  estate  in  equity  under  the  agreement.  There  is  only  one 
court,  and  the  equity  I'ules  prevail  in  it.  The  tenant  holds  under  an  agree- 
ment for  a  lease.  He  holds,  therefore,  under  the  same  terms  in  equity  as  if 
a  lease  had  been  granted,  it  beimj  a  case  in  which  both  parties  admit  that  relief 
is  capable  of  being  given  by  specific  performance.  That  being  so,  he  cannot 
complain  of  the  exercise  by  the  landlord  of  the  same  rights  as  the  landlord 
would  have  had  if  a  lease  had  been  granted."  It  may  possibly  still  be  open 
to  question  whether  if  the  tenant  had  not  claimed  specific  performance,  but 
had  brought  an  action  in  the  Queen's  Bench  Division  for  the  wrongful  dis- 
tress, the  defendant,  who  had  asserted  a  legal  right  before  he  had  perfected 
it,  as  he  might  have  done,  by  proper  proceedings  for  that  purpose,  would 
have  been  held  to  be  precisely  in  the  same  position  as  though  he  had  done  so, 
or  whether,  to  put  the  proposition  in  another  form,  it  is  the  law  that  in  all 
proceedings  after  entry  between  the  parties  to  an  agreement  which  b}'  the 
Statute  of  Frauds  and  the  8  &  9  Vict.  c.  lOG  is  void  as  a  lease,  and  can  operate 
where  the  tenant  has  entered  as  creating  an  estate  at  will  only,  "  either  in  law 
or  equity  "  (see  the  words  of  the  Statute  of  Frauds  set  out  in  the  note  to  the 
next  case)  they  are  in  precisely  the  same  position  as  if  those  statutes  had 
never  passed.] 

The  liability  of  a  party  holding  over  after  the  expiration  of  a  tenancy  by 
agreement,  is  rather  a  matter  of  evidence  than  of  law ;  and  although  Lord 
Kenyon  in  the  principal  case,  and  Lord  EUenborough  in  Dighij  v.  Atkinson,  4 


IIU'J  I>«JK  I).   i:i(;t.i     \     I.I.M.. 

ramp.  17H,  scfin  to  lay  down  tlu-  niU-  as  oiu*  of  law,  vrt  In  all  the*  more  re- 
c'L'iit  rases  upon  tin-  siil>j«'rt,  tla-  i-xlstciu'e  of  any  lonaiify  In  tlie  party  hold- 
In;;  oviT  (bi'vond  a  ti-nancy  at  suHiTance,  which  exists,  l>y  law,  In  every  ease 
where  u  person  IujUIs  over  hy  wronK  after  the  determination  of  a  rl}(htful 
estate,  but  wliW-h  Imports  no  privity  between  the  landlord  and  tenant,  Co. 
Lltt.  't'h,  '270h,  271'/),  as  well  as  the  tenns  npon  whh-h  snrh  tenancy  exlstti, 
have  been  considered  as  (piestlonw  for  the  jnry  :  the  construction  of  any 
written  agreement,  and  the  apiilicabllity  of  Its  terms  to  a  tenancy  from  year 
to  year,  licinii  for  the  ileclslon  of  the  court.  See  the  remarks  of  Lord  Den- 
nian,  ('.  i).,  anil  IJttledale,  J.,  \ii  Jn/utson  v.  Thf  f'hurrhiriinlmM  of  St.  I'etrr 
Herefitrd,  4  A.  &  K.  '.2."» ;  see  al.so  Jiniea  v.  She<tr»,  4  A.  i  K.  M32 ;  F.l^/ar  V. 
Watgnn,  Car.  &  Marsh.  4'.t4 ;  and  The  Mivjnr  <>/  Theifnnl  v.  Tylfr,  H  y.  B.  US. 
In  which  case  Mr.  Justice  WlKhtman  says,  '•  when  a  party  Is  alloweil  to  hold 
over  after  tlie  expiration  of  a  tenancy  by  agreement,  the  terms  on  which  he 
continues  to  «)ccnpy  are  matter  of  evidence  rather  than  of  law." 

The  law.  It  Is  apprehended,  does  not  Infer  any  i>arti<ular  contract  from  the 
mere  fact  of  entry  under  an  ai;reenuMit  for  a  future  lease,  or  a  holding  over 
after  the  expiration  of  a  past  ayreenu-nt,  per  Lonl  .Vblnuer,  ('.  li.,  Wiirimj  v. 
Kimj.  «  M.  &  W.  575.  See  also  Jenntr  v.  Clfi/ij,  1  M.  JL  U.  217;  ./uitrn  v. 
Shiitrs,  i  A.  &  E.  «32;  Chnpmnn  v.  Ti>iruer,i\  M.  &  \V.  lo4,  pi-r  Parke.  IJ. ; 
Rii<fl>j  V.  liijle,  11  M.  &  W.  HI;  The  M(t>jnr  »/  Thrtfonl  V.  Tijli-r.tiuprii.  [The 
question  In  all  the.se  cases  Is  one,  not  of  law  for  the  Jud^e,  but  of  fact  for 
the  jury.  Wulkfr  v.  Gwlf,  (>  II.  &  N.51M;  Onkleij  v.  Monri-,  ;i  II.  &.  C.  7iM], 
L.  U.  1  Kx.  l.V.t;  L.  and  \.  W.  linthnvj  Cnmp.  v.  HV.W.  L.  U.  2  C.  V.  5;j;»;  30 
L.  .1.  f.  1".  24.-i;  and  Coniiith  v.  Stuhh.t,  L.  K.  5  C.  V.  3.14:  3'i  L.  J.  C.  I'.  202.  J 

Hut  where  the  i)arty  so  ociMipyint;  pays  rent  accordlni;  to  the  terms  of  the 
agreement,  either  i)ast  or  future,  and  thereby  becomes  tenant  from  year  to 
year,  the  iufi'n'Uce  is  irresistible,  j;i  the  nhseitre  nf  nnijlhimj  Id  shmr  n  ilifferetU 
undirslnndiiDj,  tliat  the  parties  Intend  the  occupation  to  continue  npon  such 
of  the  terms  of  the  ai;reement  as  are  not  Inconsistent  with  such  a  tenancy; 
and  this  is  probably  all  that  was  intended  by  Lord  Kenyon  In  the  principal 
case,  and  by  Lord  Ellenborou;;h  in  Diijfuj  v.  Atkinsmt.  See  Dne  <l.  Mntick  v. 
Geekie,  5  Q.  H.  H41;  Fiwh  v.  Miller,  5  C.  B.  42«  :  \_Kelh-;i  v.  roHersmi,  L.  U. 
9  C.  P.  681]  ;  Uifiitt  V.  (h-i\tll(fiii,  17  Q.  B.  508;  and  the  note  to  the  next  ca.se. 

[It  is  obvious  that  the  onlinary  inference  from  a  holdiui;  over  by  a  lessee 
after  the  expiration  of  a  lease  an«l  a  receipt  of  rent  nuiy  be  rebutted  by  show- 
ing that  the  person  who  is  the  oirner  of  the  hind  irhen  the  lease  ejpirex,  and 
who  receives  the  rent,  is  not  ac(iuainted  with  the  terms  of  the  ori,i;inal  let- 
ting. Thus,  where  a  reniaindemian  allowed  a  tenant  who  had  been  let  in  by 
the  previous  tenant  for  life  to  remain  in  possession  after  the  death  of  the 
tenant  for  life,  and  the  consequent  expiration  of  the  lease,  and  received  from 
him  the  old  rent  but  did  not  know  that  the  lease  had  contained  a  clause  pro- 
viiling  that  at  the  end  of  the  tenancy  the  lessee  was  to  be  paiil  for  all  fruit 
trees  planted  by  him  on  the  premises,  it  was  helil  that  this  stipulation  did  not 
form  one  of  the  terms  of  the  new  tenancy.     Onkhij  v.  Mimrk,  .S  II.  &  C.  706. 

The  rules  mentioned  above  apply  where  there  has  been  a  real  holdinii  over. 
The  mere  accidental  retention  by  a  yearly  tenant  of  the  key  of  the  premises 
after  giving  a  notice  to  quit,  and  removing  with  his  goods  from  the  house,  is 
not  any  evidence  of  an  intention  to  continue  the  tenancy.  Gray  v.  Bompas, 
11  C.  B.  N.  S.  520.] 


CLAYTON  V.  BLAKEY. 


MICH.  — 39  G.3. 
[reported  8  T.  R.  3.] 


Though  hy  the  Statute  of  Frauds  it  is  enacted  that  all  leases  hy 
parol^for  more  than  three  years^  shall  have  the  effect  of  estates 
at  ivill  only^  such  lease  may  he  made  to  enure  as  a  tenancy  from 
year  to  year. 

This  was  an  action  against  a  tenant  for  double  rent  for 
holding  over  after  the  expiration  of  his  term,  and  a  regular 
notice  to  quit.  The  first  count  of  the  declaration  stated  a 
holding  under  a  certain  term,  determinable  on  the  12th  of  May- 
then  past ;  and  other  counts  stated  a  holding  from  year  to  year, 
determinable  at  the  same  period.  It  appeared  in  evidence  that 
defendant  had  held  the  premises  for  two  or  three  years,  under 
a  parol  demise  for  twenty-one  years  from  the  day  mentioned,  to 
which  the  notice  to  quit  referred;  and  the  Statute  of  Frauds 
directing  that  any  lease  for  more  than  three  years,  not  reduced 
into  writing,  shall  operate  only  as  a  tenancy  at  will,  it  was  con- 
tended, at  the  trial,  at  the  last  assizes  for  Northumberland,  that 
the  holding  should  have  been  stated  according  to  the  legal 
operation  of  it,  as  a  tenancy  at  will;  and  as  there  was  no  count 
adapted  to  that  statement,  that  the  plaintiff  ought  to  be  non- 
suited. Hooke,  J.,  however,  considering  that  it  amounted  to  a 
tenancy  from  y^ear  to  year,  overruled  the  objection,  and  the 
plaintiff  obtained  a  verdict. 

Wood  now  moved  to  set  aside  the  verdict,  on  the  ground  of  a 
misdirection,  relying  upon  the  positive  words  of  the  statute. 

Lord  Kenyoti,  C.  J. — The   direction  was   right,  for  such  a 
holding  now  operates  as  a  tenancy  from  year  to   year.     The 

1347 


1348  <  i..\\  i«>.N    \ .    i.i.Aivi.'i. 

nieiining  of  tlie  statute  was,  that  siuli  an  agreement  should  not 
opt'iate  as  a  ti'iin;  l)iit  what  was  th«*n  consultTetl  its  a  tenancy 
at  will  has  sinci-  ht-cn  i)rc){)erly  construf(l  to  enure  as  a  tenancy 
from  year  to  year. 

Per  Curiam.  Itule  refused. 


TiiKSK  two  cases,  nlthou(;Ii  loudly  iinpu<;ii»'<l  hj-  Mr.  Watkins,  in  his  aiilc 
litllf  tn-atise  on  Convi'vanciuK,  have  never  since  been  invalidatetl  l>\-  jiulieial 
decision.  Nor  does  either  of  them  seem  inconsistent  witli  tlie  Statute  of 
Frauds,  [ftut  see  tlie  notes  to  the  last  case,  and  Wahh  v.  Lonmlnlr,  there 
cited,  as  to  tlie  etl'ect  of  tlie  Judicature  Act.  The  Statute  of  Frauds)  enaet.s, 
in  sec.  1,  "  Tli.nt  ail  leases,  estates,  interests  of  freehold,  «)r  terms  of  years, 
or  any  uncertain  interest  of,  in.  to,  or  out  of,  any  messuages,  manors,  lands, 
lenenjenls,  or  liereditanients,  nnide  or  created  by  livery  and  srlsin  only,  or  by 
parol,  and  not  put  in  wrlllni;  and  sl;;nctl  l)y  the  parties  so  nuilvini;  and  creat- 
int;  the  .same,  or  their  a;;ents  thereunto  lawfully  autiiorlse<l  by  writinsj,  shall 
liave  the  force  and  ett'ect  of  leases  or  estates  at  will  only,  and  shall  not  either 
in  law  or  e<|uity  be  deemed  or  taken  to  have  any  other  or  jn"eater  force  or 
cH'cct,  any  consideration  for  niaklni;  such  parol  leases  to  the  contrary  not- 
withstnndini;." 

Skc.  '2.  ••  K.xcept,  nevertheless,  all  leases  not  exceediui;  the  term  of  tliree 
years  from  the  luakin;;  thereof,  whereupon  the  rent  reserved  to  the  landlord 
duriui;  such  term  shall  amount  to  two-thirds  part  at  least  of  the  value  of  the 
thiui;  demised." 

Now  it  is  dear,  that  the  words  of  these  sections  are  satisfleil  by  holding;, 
that  a  parol  ilemise  for  more  than  three  years,  creates,  in  thf  Hist  instdnce. 
an  estate  at  will,  strictly  so  called,  which  estate  at  will,  when  once  created, 
may,  like  any  other  estate  at  will,  be  chanired  Into  a  tenaiu-y  from  year  to 
year,  by  payment  of  rent,  or  other  circumstances  intllcative  of  an  intention 
to  create  such  yearly  tenancy  :  and  this  perhaps  is  all  wliidj  was  decided  by 
the  two  cases  in  the  text,  for.  in  Doe  v.  Ihll,  we  are  expressly  told  that  the 
dcfvmhiut  had  paid  rent :  and  though.  In  Clai/ton  v.  lilaki'i/,  there  is  no  express 
mention  of  rent  liavini;  l)ecn  |)aid,  yet,  as  the  tenant  had  been  in  p()ssession 
for  tliree  years,  and  that,  under  a  rent  (for  the  action  was  for  double  rent), 
it  is  more  than  prol)able  that  some  payment  of  rent  had  taken  place  during 
that  period.  Indeed,  to  deny  to  such  a  payment  the  effect  of  creating  a  tenancy 
from  year  to  year,  in  cases  where  the  letting  was  by  parol  for  more  than 
three  years,  would  be  to  contravene,  rather  than  obey,  the  enactment  of  the 
Statute  of  Frauds,  since  that  act  evidently  means  that  such  a  parol  lease  shall 
enure  in  every  respect  as  a  lease  at  will.  Now  one  of  the  incidents  of  a  lease 
at  will  is  its  convertibility,  by  payment  of  rent,  into  a  tenancy  from  year  to 
year.  See  Doe  v.  Weller,  7  T.  K.  478 ;  Roe  v.  liees,  2  Bl.  1171 :  and  see  7  Ring.' 
458.  vbi  per  Tindal,  C.  J.,  "  If  a  party  enters  and  pays,  or  promises  to  pay  a 
rent  certain,  or  settles  it  in  account  (see  Cox  v.  Beiit,  5  Bing.  185),  a  new- 
agreement  may  be  presumed,  under  which  the  landlord  may  have  a  right  to 
distrain." 

But  the  decisions  (it  is  believed)  have  not  gone  so  far  as  to  establish  that 
a  parol  lease  for  more  than  tliree  years  at  a  fixed  rent  will,  without  any  other 
circumstance,  create  au  interest  from  year  to  year,  so  as  to  give  the  tenant  a 


CLAYTOX    V.    BLAKEY.  1349 

right  to  enter  indefeasible  except  by  six  months'  notice,  ending  with  the 
expiration  of  the  year.  Such  a  construction  would,  perhaps,  be  incompatible 
with  the  strict  letter  of  the  Statute  of  Frauds ;  nor  (it  is  believed)  has  it 
ever  been  held,  that  a  parol  demise  for  more  than  three  years,  at  a  fixed  rent, 
even  when  coupled  with  the  lessee's  entry  under  it,  wall,  before  payment  or 
acknowledgment  in  account  of  any  part  of  the  rent  reserved,  have  the  eft'ect 
of  rendering  him  tenant  from  year  to  year.  Indeed,  the  contrary  appears 
involved  in  the  case  of  Doidge  v.  Boiuers,  2  M.  &  W.  305,  where  three  persons 
entered  under  a  lease  for  seven  years,  not  signed  by  the  lessor,  and,  there- 
fore, inoperative  under  the  Statute  of  Frauds  :  payments  of  rent  were  made, 
but  not  being  shown  to  have  been  with  the  assent  of  one  of  the  three,  it  was 
held  that,  as  against  her,  there  was  no  evidence  of  a  tenancy  from  year  to 
year,  she  not  having  resided  a  year  on  the  premises;  Parke,  B.,  saying, 
"  Under  the  original  contract  no  demise  could  he  created,  but  a  mere  tenancy  at 
loill.  Then,  in  order  to  constitute  a  new  tenancy,  it  must  be  shown  that  all 
the  three  parties  agreed  to  vary  it  by  a  new  contract  for  a  tenancy  from  year 
to  year."  See  De}in  v.  Fearnside,  1  Wils.  170  ;  Goodtitle  v.  Herbert,  4  T.  E.  080. 
[As  to  where  equity  will  enforce  a  verbal  agreement  by  a  landlord  not  to 
disturb  his  tenant  during  the  residue  of  the  landlord's  own  term,  even  though 
such  unexpired  terra  exceeds  three  years,  see  In  re  Keys,  L.  R.  10  Eq.  521, 
which  was  distinguished  in  Wood  v.  Beard,  2  Ex.  D.  30,  40  L.  J.  M.  C.  100; 
Cole  V.  Pilkington,  L.  R.  19  Eq.  174;  Kusel  v.  Watson,  11  Ch.  D.  129;  48  L. 
J.  Ch.  413;   Cheshire  Lines  v.  Leicis,  50  L.  J.  Q.  B.  121.] 

Tenancies  from  year  to  year  seem  to  have  ow^ed  their  origin  to  the  preva- 
lence of  a  strong  and  very  natural  feeling  of  the  justice  and  good  policy  of 
allowing  a  tenant  who  has  sowed,  to  reap.  This  feeling  manifested  itself 
during  the  earliest  ages  of  our  law"  in  the  doctrine  of  emblements,  which 
entitled  a  tenant  at  wall  to  the  crops  he  had  sowed,  and  gave  him  free  ingress 
and  egress  to  reap  and  carry  them,  after  the  determination  of  his  tenancy  by 
the  landlord.  (Litt.  sec.  08,  and  the  Commentary.)  Now  the  land  could  have 
been  of  but  very  little  value  to  the  landlord  while  covered  with  crops  belong- 
ing to  his  late  tenant,  and  subject  to  such  a  right  of  entry;  and  to  give  those 
crops  and  that  right  of  entry  to  a  tenant  at  will  was  in  effect  to  say  that  his 
enjoyment  of  the  land  should  not  be  put  an  end  to  by  the  determination  of 
the  landlord's  will  respecting  his  estate  in  it.  But  people  were  apt  to  con- 
found the  distinction  between  the  right  of  the  enjoyment  and  the  right  to 
the  estate ;  and  seeing  that  the  landlord  could  not  ar])itrarily  put  an  end  to 
the  former,  they  concluded  that  he  was  similarly  restrained  as  to  the  latter. 
"  So  long  ago,"  says  Lord  Keuyon,  in  Doe  d.  Martin  v.  Watts,  7  T.  R.  85, 
"  as  the  time  of  the  year-books,  it  was  held  that  a  general  occupation  was  an 
occupation  from  year  to  year,  and  that  the  tenant  could  not  be  turned  out  of 
possession  wdthout  a  reasonable  notice  to  quit"  The  passage  in  the  year- 
books referred  to  by  his  lordship  is  13  Hen.  8,  15  b,  iibi  per  Wilby,  "  Si  le 
lessor  ne  done  a  luy  garnir  devant  le  demy  an  il  justiflera  in  auter  an  et  issint  de 
an  in  an"  [See  also  the  judgment  of  Mr.  Justice  Buller,  in  Bight  v.  Darby,  1 
T.  R.  103,  and  that  of  Mr.  Justice  Willes  in  Jones  v.  Mills,  10  C.  B.  N.  S.  788.] 
And  it  was  better  for  the  lessor  himself  to  establish  this  custom,  since  a  late 
tenant  at  will  entitled  to  emblements  would  have  had  the  w-hole  profits  of 
the  land,  from  the  determination  of  the  will  till  the  harvesting  of  the  crops, 
without  paying  any  rent  for  it ;  whereas  the  tenant  from  year  to  year  pays 
rent  until  the  day  on  which  he  quits  the  premises. 

It  is  now  well  settled  [subject  to  the  Agricultural  Holdings  Act,  1883,  40 


l^oO  CLAYTON      V.     HLAKKV. 

&  47  Vict.  c.  61,  s.  33,  which  sec  iiifnt],  that  tlic  rcdKonafde  nntirc  to  f/nit  to 
wliicli  tlic  tenant  is  entitled,  is  lialf-a-year's  notice,  endint;  witli  tlie  period  at 
wiiicli  his  tenancy  conunenccd;  sec  Dop  v.  Porter,  3  T.  U.  13.  [In  Ilmjfni  v. 
'J'/if  Hull  I)i)ck  Compaiiij,  34  L.  J.  Chan.  KU,  Vice-Chancellor  Wood  \va.t  of 
opinion  that  on  a  tenancy  from  year  to  year,  nndcr  a  written  ajjreeiuont, 
whicli  l)o<;an  at  Lady-day,  and  was  determinable  by  the  terms  of  tlie  contract 
by  a  ••  six  months' notice,"  the  word  "  montli.s  "  meant  lunar  months,  there 
beinj;  no  custom  or  usage  of  the  district  proved  so  as  to  attach  a  dlJlerent 
meanin;;  U)  the  worils.  But  this  view  was  not  necessary  for  the  decision  of 
the  case,  there  being  evidence  to  show  tliat  the  wonls  "  Lady-day  "  and 
'•  Michaelmas,"  as  used  In  the  ajfreement.  meant  ohi  Lady-ilay  and  old 
Micliaclmas;  so  that  the  notice  (which  was  given  on  the  '.Hh  of  October) 
was  sustuinable  as  having  been  given  before  the  commencement  of  the  half- 
year  ending  with  the  period  at  which  the  tenancy  had  commtnceil.  And  It  Is 
apprehended  that  It  is  clear  that  a  notice  of  six  lunar  months  Is  not  sutllclent 
to  determine  an  ortiinary  yearly  tenancy.  The  true  rule,  as  osta)>lished  by 
the  decisions,  is  that  the  notice  must  be  a  half-ijp(tr'it  n>>tii-p ;  It  must  be  given, 
as  the  year-book  says,  '•  di'iiuit  If  dfimj  nit,"  subject  to  this  (|ualitl(-alion.  that 
wiiere  the  rent  Is  payai>le  on  the  usual  feast  tlays,  a  notice,  on  or  before  one 
of  the  feast  days  In  the  earlier  half  of  the  tenancy,  to  <iidt  on  the  feast  day 
at  the  conclusion  of  the  tcnaiuy  is  sutllcient.  although  there  may  be  fewer 
than  one  hundred  and  eighty-two  days  lietween  the  two  feast  days.  line  d. 
Durnnt  v.  Put',  (J  Hing.  574  ;  line  v.  Kniijhtleij,  7  T.  U.  (13;  Ilnirnrd  v.  W'em.ihi/, 
<;  Ksp.  53;  I)i>e  v.  Wrifjhtiiuin,  4  Esp.  G;  Doe  v.  Green,  lb.  11*8;  and  Smitft'ii 
Lnndlord  and  Tenant,  3(19  (3rd  edition).  A  period  of  six  lunar  months  of 
twenty-eight  days,  is  not  half  a  year,  nor  do  two  such  periods,  as  Is  obvious, 
constitute  a  year,  the  division  of  time  with  reference  to  which  the  reasonable 
notice  to  (juit  re(iuired  by  law  is  calculated.  See  also  ('ate.ihy'g  ('use,  i;  Kep. 
r>l.  And  where  the  tenancy  commences  on  one  of  the  fi-ast  days  a  notice  to 
(|uit  given  on  the  day  after  one  of  them  is  bad;  e.y.,  notice  given  on  the  SOth 
March  to  (juit  on  the  L'ltth  Septemiier,  Monjan  v.  Davies,  3  C.  I'.  I).  '.'CO.] 

It  has  been  held  that  the  notice  must  end  with  the  period  at  wliirh  the 
tenancy  commenced,  even  although  the  demise  be  in  terms  for  one  year  and 
six  months  certain.  Doe  d.  Robinson  v.  Dohell,  1  Q.  B.  800 ;  see  also  Doe  d. 
Cormnall  v.  Mattheirn,  11  C.  B.  G7.'>,  Berrey  v.  Lindley,  3  M.  &  Gr.  498,  [.S'anJ- 
hill  V.  Franklin,  L.  11.  10  C.  P.  377;]  but  In  Doe  d.  Buddie  v.  Lines,  11  Q.  B. 
403,  where  a  tenant  for  a  term  commencing  at  Christmas,  made  an  under- 
lease commencing  also  at  Christmas,  but  ending  at  Midsummer,  and  the  under- 
tenant held  over  and  paid  rent,  it  was  held,  in  an  ejectment  brought  by  the 
lessee  against  the  sub-lessee,  that  the  tenancy  from  year  to  year  created  by 
tlie  payment  of  rent,  commenced  at  Midsummer  and  not  at  Christmas,  and 
that  the  notice  to  quit  must  be  given  accordingly.  The  grounds  of  this 
decision  do  iiot  appear  very  clearly  in  the  judgment;  [and  see  Kelly  v.  Patte- 
son,  43  L.  J.  C.  P.  320. 

As  to  the  efl'ect  in  determining  the  tenancy  of  a  notice  to  quit  which  has 
been  subsequently  withdrawn,  see  Tayleur  v.  Wildin,  L.  K.  3  Ex.  303,  37  L. 
J.  Ex.  173.] 

If  on  the  creation  of  a  tenancy  from  year  to  year  the  parties  do  not  use 
words  showing  that  they  contemplate  a  tenancy  for  two  years  at  least,  the 
tenancy  is  determinable  at  the  end  of  the  first  as  well  as  of  any  subsequent 
year.  Dnr  d.  Clarke  v.  Smarid(/e,  7  Q.  B.  957;  and  as  to  the  words  which 
have  been  lield  to  show  an  intention  to  create  a  tenancv  at  least  for   two 


CLAYTON    V.    BLAKEY. 


1351 


years   see  Doe  d.  Chadborn  v.  Green,  9  A.  &  E.  G5S ;  Denn  d.  Jacklin  v.  Cart- 
wriyht,  i  East,  29 ;  R.  v.  Chawton,  1  Q.  B.  247 ;   [and  Doe  d.  J/onc^•  v.  Ge^^-i^ 

5  Q.  B.  841.  .     . 

By  46  &  47  Vict.  c.  61,  s.  33,  the  Agricultural  Holdings  Act,  1883,  it  is 
enacted  tliat,  "  Wliere  a  half-year's  notice  expiring  with  a  year  of  tenancy  is 
by  law  necessary  and  sufficient  for  determination  of  a  tenancy  from  year  to 
year,  in  the  case  of  any  such  tenancy  under  a  contract  of  tenancy  made 
either  before  or  after  the  commencement  of  this  Act  a  year's  notice  so  expir- 
ing shall  by  virtue  of  this  Act  be  necessary  and  sufficient  for  the  same; 
unless  the  landlord  and  tenant  of  the  holding  by  writing  under  their  hands 
agree  that  this  section  shall  not  apply,  in  which  case  a  lialf -year's  notice  shall 
continue  to  be  sufficient,  but  nothing  in  this  section  sliall  extend  to  a  case 
wliere  the  tenant  is  adjudged  banivrupt,  or  has  flled  a  petition  for  a  composi- 
tion or  arrangement  with  his  creditors."  See  on  the  construction  of  this 
knd  of  the  corresponding  section  of  the  repealed  Act  of  1875,  Wilkinson  v. 
Calvert,  3  C  P.  D.  369 ;  Barlow  v.  Teal,  15  Q.  B.  D.  501 ;  54  L.  J.  Q.  B.  564. 

By  s.  54,  nothing  in  this  Act  shall  apply  to  a  holding  that  is  not  either 
wholly  agriculturaror  wholly  pastoral,  or  in  part  agricultural  and  as  to  the 
residue  pastoral,  or  in  whole  or  in  part  cultivated  as  a  marlcet  garden,  or  to 
any  holding  let  to  tlie  tenant  during  his  continuance  in  any  office,  appoint- 
ment or  employment  held  under  the  landlord. 

On  a  weekly  tenancy  it  has  been  doubted  whether  any  notice  to  quit  is 
necessary;  see  i^r  Cresswell,  J.,  in  Toivue  v.  Campbell,  3  C.  B.  922,  citmg 
Ilnffel  V  Armisted,  7  C.  &  P.  56.  But  a  reasonable  notice  is,  it  is  apprehended, 
clearly  necessary;  and  the  safest  plan  is  to  give  a  weelc's  notice;  see  Jones  v. 
Mills' 10  C.  B.  N.  S.  788,  wliere  Mr.  Justice  Williams  thouglit  that  the  notice 
should  be  a  weelv's  notice,  but  Mr.  Justice  Willes  was  not  satisfied  with  the 
correctness  of  that  view,  which  was  not  necessary  for  the  decision.  A 
month's  notice  has  been  held  to  be  the  proper  notice  on  a  montlily  tenancy. 
Beamish  v.  Cox,  16  L.  R.  Ir.  270,  458.  There  is  no  ol)jection  in  law  to  a  ten- 
ancy determinable  by  a  week's  notice  to  quit  and  a  reasonable  time  being 
allowed  after  the  expiration  of  the  notice  for  the  tenant  to  remove  his  goods ; 
Cornish  V.  Stubbs,  L.  R.  5  C.  P.  334,  39  L.  J.  C.  P.  202,  followed  by  Mellor  v. 
Watkins,  L.  R.  9  Q.  B.  400.] 

There  is  no  doubt  that  a  tenancy  at  will,  strictly  speaking,  may  still  be 
created;  Ball  v.  CuUimore,  5  Tyrwh.  753;  [Marquis  of  Camden  v.  Batterbarij, 
5  C   B   N.  S  808.]     It  may  be  so  by  express  words,  Richardson  v.  Langridge, 

4  Tauiit.  128  ;  Cudlip  v.  Rundle,  4  Mod.  9  ;  R.  v.  Fillongley,  Cald.  569.  Doe  d. 
Basto  V.  Cox,  11  Q.  B.  122,  17  L.  J.  Q.  B.  3.  A  person  who  holds  rent-free  by 
the  permission  of  the  owner  is  a  tenant  at  will.  R-  v.  Collett,  Russ.  &  Ry.  C.  C. 
498 ;  ex.  (jr.,  a  minister  placed  in  possession  by  trustees  for  the  congregation. 
Doex.  Jones,  10  B.  &  C.  718;  vide  tamen  Wilkinson  v.  Malin,  2  Tyrwh.  544. 

So  [was]  a  person  entering  under  an  agreement  to  purchase,  or  for  a  lease, 
and  who  [liad]  not  paid  rent.  See  Becjnart  v.  Porter,  7  Bing.  451 ;  Doe  v. 
Miller,  5  C.  &  P.  595;  Riseleij  v.  R'jle,  11  M.  &  W.  16;  IPollen  v.  Brewer,  7  C. 
B.  N.  S.  371]  ;  although  he  [had]  paid  interest.  Doe  d.  Tomes  v.  Chamberlain, 

5  M.  &  W.  14.     See  Howard  v.  Shaw,  8  M.  &  W.  119. 

On  payment  of  rent,  however,  he  [became]  tenant  from  year  to  year. 
Mann  v.  Lovejoy,  R.  &  M.  355.  See  Sa^inders  v.  Musgrove,  6  B.  &  C.  524; 
Chapman  v.  Towner,  6  M.  &  W.  100.  Provided  that  he  paid  it  with  reference 
to  a  yearly  tenancy;  for  as  Baron  Parke  observes,  in  Braithwaite  v.  Hitdimck, 
10  M    &  W   "  although  the  law  is  clearly  settled  that  where  there  has  been 


l;5;V2  CLAYTON     V.     HLAKKV. 

an  ayrccnipnt  for  a  loaso,  and  an  occupation  without  i>ayinont  of  rmt,  tho 
oc«'iii)i«'r  is  a  inert'  tenant  at  will,  yet  it  lias  Ix-en  lu-ltl  tlial  if  hv  sulisiMnicutly 
pays  rent  under  that  aijreenient  lie  tiierel»y  lieeonies  tenant  from  year  to  year. 
I'ayment  of  rent,  indeed,  must  l)e  understood  to  mean  pnyiiunt  irit/t  n/fn-ucf  tu 
a  yfurlij  hohUmj  ;  for  in  /iirhartUtm  v.  Lnnijrithjf,  a  party  who  liad  paid  rent 
under  an  aifreenient  of  tlds  description,  i)ut  had  not  paid  it  witli  reference  to 
a  year,  or  any  alitpiot  part  of  a  year,  was  held,  nevertheless,  to  he  a  ten:iiit  at 
will  oidy."  .See  also  tlie  jud<;ment  f)f  the  same  learne<l  judi;e  in  />»«■  d.  Hull  v. 
W'liiitl,  H  M.  &  ^^^.  MT;  and  the  reason  is,  because  the  payment  of  rent  by  tlio 
occn|)ier  witli  n-ference  to  a  yearly  )ioIdin<;,  and  the  receipt  of  it  by  the  land- 
lord, [was]  evidence  of  the  intention  of  the  parties  that  a  yearly  tenancy 
should  l)e  created. 

So  where  a  party  haviii;:  enlentl  nndi-r  a  void  lease  ;;ranted  by  A.  A  H. 
paid  thcin  rent,  and  continued  in  possession  after  an  assi<;ninont  of  hlH 
Interest  by  B.  to  A.,  and  paid  rent  to  A.  with  notice  of  the  assi<;nment.  this 
was  held  to  be  evidence  of  a  new  contract  of  t«'nancy  from  year  to  year  with 
A.  alone:   Ardm  v.  SiiHinin.  U  q.  H.  M2. 

It  is  however  only  evidence:  />«/■  d.  L'lnl  v.  (V(i;/o,  tJ  ('.  H.  '.is ;  anil  altlii>iii,di 
in  the  absence  of  other  circumstances,  showing;  a  contrary  intention,  it 
wouhl  l)e  det'ined  conclusivi-,  liiahnp  v.  Jlinrnril,  2  l\.  &.  ('.  UMl,  yet  when"  it 
ajipears  the  parties  do  not  intend  it  to  have  that  etlect,  the  tenancy  at  will 
remains  unad'ected  by  it.  Tims  In  the  ca.se  «)f  Ihn- {\.  Haslo  v.  Cnr,  11  ^^.  B. 
122,  17  L.  J.  Q.  B.  .1,  where  ejectment  was  brouirht  by  2  B.  K.  &  M  .  mort- 
!;a<;ees,  aj^ainst  the  defendant,  mort;;a<;or,  the  mort;;ai;e  deeil  contained  tlie 
following;  clause,  '•  And  the  said  \V.  ("ox  liereby  agrees  to  become  tenant  to 
tlie  said  B.  K.  &  M.  henceforth  dunu<;  their  will  and  pleasure,  at  and  after  the 
rate  of  2'!/.  fl.v.  per  year,  payable  (piarterly,  on  the  isth  .Sejitember.  isth  of 
December,  Isth  of  March,  and  isth  of  June:"  the  defendant  having  made 
default  in  payment  of  tlie  insfalnu'uts  of  the  mortjraire  money  and  rent,  the 
lessors  distrained  for  four  (|uarters"  n-nt ;  afterwards  they  ijavc  a  week's 
notice  to  qtut  and  brought  ejectment.  It  was  contentleil  on  behalf  of  the 
defentlant  that  he  was,  under  the  circumstances,  tenant  from  year  to  year; 
and  that  a  six  months'  notice  was  re<iuisite;  the  learned  jndfje  (Mr.  Justice 
Coltinan)  however  decided  that  the  defendant  continued  tenant  at  will,  and 
that  the  notice  was  sutllcient.  Tlic  Court  of  Queen's  Bench  were  of  opinion 
that  he  was  rii;ht,  and  refused  a  rule  for  a  new  trial.  So  in  the  case  of  Due 
d.  I)i.ii(  v.  Dftridi,  7  Kxch.  Si>,  a  tenancy  at  will  l)etween  a  morti;aiiee  and 
niortiiaiior  was  also  liehl  to  exist  notwithstanding  tlie  reservation  of  a  yearl}' 
rent;  see  also  Puihorn  v.  Souster,  8  Exch.  7<>;i :  In  re  Stnuid.  «  C.  B.  .'i02 :  Dne 
d.  Prior  v.  Onf/ley,  10  C.  B.  25.  TTie  (Juardians  of  the  Woodhridije  Union  v. 
The  Guardians  of  Colneis,  13  Q.  B.  269;  West  v.  Fritrhe.  W  Kxch.  2ir.;  [and 
Smith  V.  Widlake,  3  C.  P.  D.  10. 

It  is  important  to  observe  that  the  law  will  not  imply  the  existence  of  a 
tenancy  from  year  to  year  from  the  fact  of  payment,  after  entry  upon  the 
land,  of  suras  of  money  described  as  rent,  if  on  looking  at  the  whole  of 
the  circumstances  of  the  case  it  apiiears  not  to  have  been  the  intention  of  the 
parties  to  create  the  relation  of  landlonl  and  tenant.  This  rule  is  well  illus- 
trated by  the  case  of  The  Manjuis  of  Camden  v.  Batterbury,  5  C.  B.  N.  S.  H08. 
In  this  case  a  building  agreement  under  seal  had  been  made  between  the 
owner  of  a  piece  of  lanil  and  a  builder.  This  agreement  provided  for  the 
granting  of  future  leases,  and  also  contained  a  covenant  on  tlie  part  of  the 
builder  that  be  would  pay  certain  rents  when  some  buildings  should  be  erected 


CLAYTON    V.    BLAKEY.  1353 

on  the  land,  and  leases  of  them  should  be  granted,  and  that  until  the  grant- 
ing of  the  leases  he  would  pay  such  yearlj^  sums  or  rents  as  would  become 
payable  if  leases  had  been  actually  granted.  The  contract  also  contained  a 
proviso  for  re-entry  in  case  any  portion  of  the  yearly  sums  or  rents  should  be 
unpaid  for  twenty-one  days.  The  builder  assigned  his  interest  under  the 
agreement  to  a  third  person,  Avho  entered  on  tlie  land,  erected  some  buildings 
on  it,  paid  the  stipulated  yearly  sums  for  some  time,  and  then  assigned  his 
interest  to  another.  An  action  for  use  and  occupation  was  afterwards 
brought,  in  respect  of  a  portion  of  the  land,  by  the  owner  of  the  property 
against  the  assignee  of  the  builder.  Under  these  circumstances  the  court 
was  of  opinion  that  neither  the  builder  nor  his  assignee,  had  acquired  any 
estate  in  the  premises  under  the  building  agreement,  and  that  no  tenancy 
from  year  to  year  had  arisen.  Mr.  Justice  Williams,  after  stating  that  he 
thought  that  no  tenancy  from  year  to  year  subsisted  between  the  plaintiff  and 
the  defendant,  proceeded  as  follows  : 

"  It  seems  to  me  to  be  clear  that  the  building  articles  carefully  exclude  the 
acquisition  of  any  estate  by  Elliott  (the  l)uilder).  It  would  perhaps  be  diffi- 
cult to  say  that  he  did  not  become  tenant  at  will :  but  beyond  a  tenancy  at 
will,  he  clearly  had  no  estate.  What,  then,  was  Elliott's  position?  He  had 
under  the  articles  a  right  to  enter  upon  the  land  and  devote  it  to  the  purposes 
thereby  contemplated,  and  for  this  right  he  was  to  pay  an  annual  sum,  not  as 
rent,  but  as  a  collateral  payment  until  the  leases  should  be  granted,  and  an 
estate  thereby  acquired.  It  is  plain,  therefore,  that  the  sum  stipulated  to  be 
paid  by  Elliott  not  being  payable  as  rent  for  the  occupation  of  tlie  land,  but 
merel}'  a  stipulated  sum  payaljle  by  virtue  of  the  agreement,  so  far  as  he  was 
concerned  there  is  no  ground  for  saying  that  he  ever  paid  rent  in  the  sen.se  of 
creating  a  tenancy.  But  it  is  contended  that,  when  the  defendant  came  in, 
the  payment  was  to  be  considered  as  rent  paid  for  the  enjoyment  of  the  land, 
and  so  a  tenancy  from  year  to  year  was  created.  It  seems  to  me  that  there 
is  no  ground  whatever  for  implying  a  tenancy  from  year  to  year  in  the 
defendant.  Where  a  tenancy  from  year  to  year  is  implied  from  periodical 
payments,  it  is  because  you  cannot  account  for  the  pay^nent  of  the  money  upon 
any  other  hypothesis  than  that  it  is  paid  for  rent,  and  hence  the  law  implies  a 
tenancy  from  year  to  year.  But  here  there  is  no  moi*e  reason  for  implying  a 
tenancy  from  year  to  year  after  the  defenthint  came  in  than  there  was  when 
Elliott  held  the  land.  The  defendant  became  liable  to  pay  the  money  because 
Elliott  had  assigned  the  agreement  to  him,  and  he  had  agreed  Avith  Elliott  to 
make  the  payments.  .  .  .  The  payments  which  were  made  bj'  him  were  not 
made  in  discharge  of  any  original  liability  in  himself,  but  in  discharge  of 
the  liability  of  Elliott,  against  which  the  defendant  as  assignee  was  bound 
to  indemnify  Elliott.  It  is  said  that  the  defendant  held  upon  tei'ms  different 
from  those  under  which  Elliott  held.  But  that  leaves  the  question  precisely 
as  it  was  before.  Can  you  imply  from  the  payment  of  the  money  by  the 
defendant,  that  he  meant  to  become  tenant  from  year  to  year  to  the  plaintiff"? 
Certainly  not.  The  payment  being  due  to  the  liability  of  Elliott  under  the 
agreement,  there  is  no  more  reason  for  inferring  that  the  defendant  became 
tenant  from  year  to  year  than  that  Elliott  became  such.  Then  it  is  said,  that 
if  the  defendant  was  tenant  at  will  only,  inasmuch  as  he  continued  tenant  for 
a  portion  of  the  j'car,  he  ought  to  pay  rent  pro  rata.  Be  it  tliat  he  was  tenant 
at  will,  he  was  not  tenant  at  will  on  the  terms  of  paying  so  nuich  a  year  rent. 
The  amount  still  remains  a  collateral  sum,  for  which  Elliott,  and  Elliott 
alone,  was,  in  my  opinion,  liable  under  his  agreement  with  the  plaintiff": " 
and  see  Adams  v.  Hagger,  4  Q.  B.  D.  480.] 


1:554  CLAYTON     V.    IJLAKKY. 

It  hius  already  been  shown  in  the  notes  to  Keevh  v.  Ilnll,  tliat  tliere  are  cer- 
tain cases  in  whicli  a  niort;;a,i;<)r  in  possession  beconu's  tenant  at  will  to  the 
niortj;(af;ee.  A  vendor  who  remains  in  possession  after  liavin<;  conveyed,  is 
not  tenant  't  will  to  the  vendee.  Teic  v.  Jones,  i;5  M.  &  W.  la,  because  lie  is 
not  in  p<.  ...  -sion  necessarily  by  the  consent  of  the  vendee;  but  it  may  per- 
haps l)e  laid  down,  that  wherever  a  person  is  in  possession  of  land,  in  which 
he  has  no  freeliold  estate,  nor  tenancy  for  any  certain  term,  and  which  he 
ncverllicless  holds  l)y  the  consent  of  the  true  owner,  that  i)erson  is  tenant  at 
will,  and  as  such  is  lial)le  to  pay  for  his  occupation,  if  benellcial;  llihs  v. 
/Ur/Ktrdson,  I)  A.  &  K.  HV.i ;  Iloii-nnl  v.  Shnin,  8  M.  &  VV.  UD;  unless  there  be 
a  stipulation  that  he  shall  occupy  rent-free.  ?>ce  per  Alderson,  B.,  in  llmrnrd 
V.  Shaw,  and  Wintprlmttom  v.  Ingham,  7  Q.  B.  Gil.  in  which  case  it  was  held 
that  a  party  remaininj;  in  possession  under  a  contract  for  purchase  which 
ultimately  fails  for  want  of  title  is  not  liable  to  pay  for  such  occuj)ati()n, 
thoutch  it  be  found  to  be  benellcial,  up  to  the  time  of  the  detenninatiiJii  of  the 
contract;  —  smix  if  he  remain  after  such  determination.  Ilmrard  v.  Shmo, 
supra. 

On  account  of  tlie  peculiar  uri^in  of  !i  tenancy  from  year  to  year,  ami  its 
beinir  still  in  contemplation  of  law  a  tenancy  at  trill,  it  seems  to  have  been 
thought  by  three  judj;es,  in  /)(»■  v.  HV//.s,  10  A.  &  E.  427,  that  it  would  be 
l)ossible  to  put  an  end  to  it  by  the  parol  consent  of  botli  parties,  such  parol 
consent  not  operating  as  a  disrlaimrr,  which  cannot  be  by  mere  words,  [Hunt 
V.  Allijijixl,  10  C.  B.  N.  S.  253;  Jones  v.  .y/ills,  ib.,  7H8],  nor  a.s  a  surrendor, 
which  would  be  opposed  to  the  Statute  of  Frauds,  but  as  a  dt'lt'rminatinn  of 
the  icill  of  both  parties. 

But  until  determined,  the  tenancy  from  year  to  year  is  a  term  which  will 
pass  to  the  personal  re|)resentative,  Di"'  d.  Ilnll  v.   Wood,  14  M.  &  W.  (iM2. 

So  tenant  from  year  to  year,  demising  from  year  to  year,  or  for  a  term  of 
years,  has  a  reversion  which  enables  him  to  distrain,  Curtis  v.  Wheeler,  Moo. 
&  M.  4'.);?;  and  see  Oiley  v.  James,  13  M.  &  W.  209,  where  tenant  from  year  to 
year  havini?  demised  for  thirty-four  years  to  the  plaintifi',  who  sub-let  for 
eiijhteen  years  and  a  (juarter  to  the  defendant,  ajjainst  whom  he  declared  in 
covenant  for  non-repair,  pursuant  to  the  terms  of  the  sub-lease,  it  was  held 
tliat  tile  plaintirt',  if  he  could  not  in  pleadinu  describe  his  interest  as  an  abso- 
lute term  for  thirty-four  years  (which  however  semhle  he  could  after  its 
expiration),  miij:ht  clearly  allege  it  to  be  a  tenancy  for  thirty-four  years, 
"  provided  the  tenancy  from  year  to  year  should  so  lonp;  continue." 

[Formerly]  if  a  person  who  had  createil  a  tenancy  at  will  became  insolvent, 
a  vestinj;:  order  [under  1  &  2  Vict.  c.  110,  ss.  37  &  45,  repealed  by  24  &  25  Vict, 
c.  134,  s.  230]  with  knowledge  thereof  by  the  tenant,  was  a  determination  of 
the  tenancy,  Doe  d.  Davies  v.  Thomas,  6  Exch.  854.  [Qu(vre  whether  the  like 
rule  obtains  under  the  analogous  sections  of  the  present  Bankniptcy  Act, 
1883,  see  ss.  54  and  55.]  But  the  notice  to  the  tenant  [has  been  thought  to 
be]  essential,  as  on  the  other  hand  a  transfer  by  the  tenant  at  will  of  his 
interest  to  a  third  person  will  not  determine  the  tenancy  unless  notice  of  it  is 
given  to  tlie  landlord.  Carpenter  v.  Colins,  Yelv.  73;  and  Pinhorn  v.  Souster, 
8  Exch.  763;  [sed  qiioere}. 


CLAYTON    V.    BLAKEY.  1355 

1.  The  Statute  of  Frauds.  —  The  Statute  of  Frauds,  29  Car. 
II.,  cliap.  3,  provided  that  '"all  leases,  estates,  interests  of  free- 
hokl,  or  terms  of  years  .  .  .  made  or  created  by  livery  and 
seisin  only,  or  by  parol,  and  not  put  in  writing  and  signed  by 
the  parties  so  making  or  creating  the  same,  or  their  agents 
thereunto  lawfully  authorized  by  writing  shall  have  the  force  and 
effect  of  leases  or  estates  at  will  only,  .  .  .  except,  nevertheless, 
all  leases  not  exceecUng  the  term  of  three  years  from  the  mak- 
ing thereof,  etc. 

2.  In  what  states  re-enacted.  —  The  English  Statute  was  in 
substance  re-enacted  in  Geon/ia,  Act  of  Feb.  25,  1784 ;  Mari/- 
land,  Kiltv,  p.  242  ;  Alexander's  British  Statutes  in  force  in 
Maryland,  p.  508  ;  South  Carolina,  R.  S.  1872,  ch.  93,  sec.  5,  ch. 
98,  sees.  1-4;  Massachusetts,  until  April  1,  1863;  Michigan, 
until  Aug.  1, 1838  ;  Missouri,  until  March  15, 1845  ;  Neiv  Jersey, 
until  Jan.  1,  1875;  and  Vermont,  until  July  1,1840;  but  is 
nowhere  now  in  force.  With  this  change  in  legislation  the  im- 
portance of  Rigge  V.  Bell  and  Clayton  v.  Blakey  as  authorities 
is  greatly  decreased,  especially  as  in  nearly  all  the  states  no 
interest  in  land  for  a  longer  period  than  one  year  can  be  created 
by  an  oral  contract. 

8.  American  statutes.  —  Every  state  and  territory  has  a  stat- 
ute on  the  subject,  prescribing  when  a  contract,  relating  to  the 
transfer  of  an  interest  in  land,  must  be  evidenced  by  writing, 
but  no  two  of  them  are  alike. 

Many  of  them  declare  that  every  contract  for  the  sale  of  any 
interest  in  land  except  a  lease  for  a  term  not  longer  than  one 
year  is  void,  unless  in  writing;  Alabama,  Code,  sec.  1733  ;  Col- 
orado, Gen.  Stats,  sec.  1517 ;  Georgia,  Code,  sec.  1950 ;  :Michi- 
gan,  Howell's  Ant.  Stats.,  sec.  6179 ;  Minnesota,  Stats,  p.  543 ; 
Nebraska,  Com.  Stats,  p.  443 ;  Nevada,  Gen.  Stats.,  sec.  2626 ; 
Wyoming,  R.  S.  sec.  1249. 

Others  enact  that  no  action  shall  he  brought  to  charge  any 
person  upon  any  oral  lease  for  a  longer  period  than  one  year ; 
Arizona,  Code,  sec.  2030;  Arkansas,  Dig.  of  Stats,  sees.  3371- 
81 ;  Connecticut,  Gen.  Stats,  sec.  1366 ;  Florida,  Dig.  of  Laws, 
p.  208 ;  Illinois,  R.  S.  p.  740  ;  Kentucky,  Gen.  Stats,  p.  296 ; 
Missouri,  R.  S.  sec.  2513 ;  Ohio,  R.  S.  sec.  4199  ;  Rhode  Island, 
Stats,  p.  552;  Tennessee,  Code,  sees.  2423;  Virginia,  Code,  sec. 
2840. 


l^oG  CLAYTON    V.     HLAKKY. 

Still  others  simply  state  that  a  lease  for  a  longer  period  than 
one  year  mtiat  be  In  writintj  ;  California,  Code,  see.  ItJ'Jo. 

In  a  few  instances  it  is  in  the  form  of  a  provision  that  an 
estate  for  a  longer  period  than  one  year  cannot  be  created  or 
transferred  except  by  an  instrument  in  writing ;  Dakota,  Code, 
sec.  322;  Kansas,  Com.  Laws,  sec.  2819;  Massachusetts,  1*.  S, 
J).  T-52  ;  Mississippi,  Code,  sec.  1188;  Montana,  Com.  Stats,  p. 
651 ;  New  York,  R.  S.  p.  2326. 

Delaware  lias  the  ju'culiar  wording,  -no  di'Miisc,  excei)t  it  Ixj 
by  deed,  shall  be  effectual  for  a  longer  term  than  one  year;" 
Laws  of  Del.  p.  707. 

loua  j)rescribes  that  no  evidence  is  competent  to  prove  a 
demise  for  a  longer  period  than  one  year  unless  it  be  in  writ- 
ing ;  McClain's  Annotated  Stats,  sec.  3663,  64. 

The  states  that  have  the  three-year  period  are  New  Jersey, 
R.  S.  p.  444  ;  Pennsylvania,  Purden's  Dig.  p.  830;  Indiana,  R.  S. 
see.  41*04  ;  and  North  Carolina,  Code,  sec.  1743. 

in  Maine,  Massacluisetts,  Mi.ssouri,  New  Hampshire,  Ohio 
and  Vermont,  there  is  no  exception;  Maine,  R.  S.  p.  838; 
Massachusetts,  P.  S.  p.  732;  Missouri,  R.  S.  sec.  2513;  New 
Hampshire,  G.  S.  p.  407  :  Ohio,  R.  S.  sec.  4r.>9;  Vermont,  R.  S. 
sec.  1022. 

In  Louisiana  leases  may  be  made  by  either  written  or  verl»al 
contract,  but  the  transfer  of  title  of  real  estate  must  be  evi- 
denced by  writing;  Code,  p.  372;  Rachel  v.  Pearsall,  8  Mart. 
La.  702. 

4.  "When  estate  at  will  created.  —  In  a  few  states  and  terri- 
tories it  is  expressly  stated  that  an  oral  lease  for  a  longer  period 
than  the  one  specified  shall  create  an  estate  at  will.  Among 
them  are  Arkansas,  Dakota,  ^lassachusetts,  Missouri,  Pennsyl- 
vania, and  Vermont.  Most  of  the  statutes  are  silent  on  this 
point,  but  there  seems  no  doubt  that  if  the  lessee  is  put  in  pos- 
session he  has  everywhere  an  estate  at  will,  governed  by  the 
ordinary  rules  applicable  to  such  holdings. 

5.  Presumptively  nothing  but  duration  of  lease  affected  by  stat- 
ute.—  Presumptively  the  amount  of  rent  to  be  paid,  the  time  of 
payment,  etc.,  — in  fact,  everything  except  the  duration,  —  is  as 
agreed  in  the  oral  contract ;  Schuyler  v.  Leggett,  2  Cow.  660  ; 
People  V.  Rickert,  8  Cow.  227  ;  Edwards  v.  demons,  24 
Wend.  480  ;  Hollis  v.  Pool,  3  Met.  350 ;  Creech  v.  Crockett,  5 
Cush.  133 ;  Currier  v.  Barker,  2  Gray  224 ;    Norris  v.  MorriU, 


CLAYTON    V.    BLAKEY.  1357 

40  N.  H.  395  ;  Lockwood  v.  Lockwood,  22  Conn.  425 ;  Crom- 
melin  v.  Thiess,  31  Ala.  412;  Craske  v.  Christian  Union,  17 
Hun  319;  Reeder  w.  Sayre,  70  N.  Y.  180;  Nash  v.  Berkmeir, 
83  Ind.  536.  This  presumption,  however,  may  be  rebutted  by 
the  acts  of  the  parties  ;  Prindle  v.  Anderson,  19  Wend.  391. 

6.  Expansion  of  estate  at  will.  —  In  those  states  where  the 
statute  excepts  leases  for  a  year  or  greater  period,  Clayton  v. 
Blakey  is  generally  followed,  and  a  lease  at  will,  arising  from 
non-compliance  with  the  statute,  may  be  expanded  by  the  acts 
of  the  parties  into  one  from  month  to  month  or  year  to  year, 
their  acts  being  construed  just  as  if  no  oral  lease  had  existed ; 
McDowell  V.  Simpson,  3  Watts  135 ;  People  v.  Rickert,  8  Cow. 
227  ;  Drake  v.  Newton,  3  Zab.  Ill ;  Ridgley  v.  Stillwell,  28  Mo. 
400 ;  Lockwood  v.  Lockwood,  22  Conn.  425 ;  Grant  v.  Ramsey, 
7  Ohio  St.  157  ;  Craske  v.  Christian  Union,  17  Hun  319 ;  Reeder 
V.  Sayre,  70  N.  Y.  180 ;  Nash  v.  Berkmeir,  83  Ind.  536 ;  Koplitz 
V.  Gustavus,  48  Wis.  48 ;  Thurber  v.  Dwyer,  10  R.  I.  355. 

In  most  of  those  states,  however,  where  there  is  no  exception, 
it  is  held  that  such  a  lease  at  will  cannot  be  thus  expanded ; 
Ellis  V.  Paige,  1  Pick.  45 ;  Hollis  v.  Pool,  3  Met.  350  ;  Kelly  v. 
Waite,  12  Met.  300;  Davis  v.  Thompson,  13  Me.  214;  Whitney 
V.  Swett,  22  N.  H.  10.  There  seems  no  sound  reason  for  such 
decision,  and  in  Vermont,  where  such  a  statute  exists,  the  courts 
have  adopted  the  general  rule ;  Barlow  v.  Wainwright,  22  Vt. 
88.  The  court  remark :  "  The  words  of  the  statute  are  satisfied 
by  holding  that  the  estate  created  in  the  present  case  was  in 
the  first  instance  an  estate  at  will,  and  only  an  estate  at  will, 
and  yet  that  it  enured  like  other  estates  at  will  and  had  the 
incidents  common  to  an  estate  at  will,  one  of  which  is  its  con- 
vertability  into  a  holding  from  year  to  year  by  the  payment  of 
rent." 

7.  Surrender. — As  regards  the  necessity  of  a  writing,  the 
same  rules  apply  to  the  surrender  of  a  lease  as  to  its  creation, 
unless  the  surrender  be  by  operation  of  law ;  Bailey  v.  Wells,  8 
Wis.  141 ;  Rowan  v.  Lytic,  11  Wend.  621 ;  Schieffelin  v.  Car- 
penter, 15  Wend.  400 ;  Hesseltine  v.  Seavey,  16  Me.  212 ; 
M'Kinney  v.  Reader,  7  Watts  123;  Van  Dekar  v.  Reeves,  40 
Hun  430". 

8.  Construction  of  various  statutes.  —  When  the  statute  de- 
clares that  a  parol  contract  is  "void,"  the  courts  have  held 
that  "  void  "  means  voidable,  and  the  defence   is  waived  if  not 


1858  CLAYTON     V.     P.LAKICY. 

pleaded;  Cooper  v.  Ilonisln-,  71  Ala.  02;  Comer  y.  Sheehaii,  74 
Ala.  452.  The  same  has  been  lield,  as  between  the  {)arties,  in 
Iowa,  where  the  lease  is  re(|uired  to  be  proved  in  writing;  Mur- 
dyke  v.  Woolen  Mills,  5  N.  \V.  liep.  72."). 

An  oral  lease  for  three  years,  with  a  right  of  the  lessor  to 
terminate  it  at  any  time  upon  four  months'  notice  was  held  void 
under  the  Minnesota  Statute  as  being  for  a  term  "exceeding 
one  year;"  Evans  v.  Winona  Lumber  Co.,  30  Minn.  515.  The 
wording  of  the  different  American  statutes  is  so  different  that 
it  is  not  safe  to  rely  upon  the  decisions  under  one  as  authorities 
under  another,  without  very  careful  comparisou. 


GEORGE  V.  CLAGETT. 


TBINITY.  —  31  G.  3. 

[reported  7  t.  r.  359.] 

If  a  factor  sells  goods  as  his  own,  and  the  buyer  knows  nothing  of 
any  principal,  the  buyer  may  set  off  any  demand  he  rnay  have 
on  the  factor  against  the  demand  for  the  goods  made  by  the 
principal. 

On  the  trial  of  this  action,  which  was  assumpsit  for  goods 
sold  and  delivered  to  the  amount  of  14:21.  Is.  9d.,  before  Lord 
Kenyon  at  the  Guildhall  Sittings,  the  case  appeared  to  be  this: 
The  plaintiff,  a  clothier  at  Frome,  employed  Messrs.  Rich  and 
Heapy  in  London,  Blackwellhall  factors,  as  his  factors  under  a 
commission  del  credere,  who,  besides  acting  as  factors,  bought 
and  sold  great  quantities  of  woollen  cloths  on  their  own 
account,  all  their  business  being  carried  on  at  one  warehouse. 
The  factors  sold  at  twelve  months'  credit,  and  were  allowed 
two  and  a  half  per  cent.  On  the  30th  of  September,  1795, 
Delvalle,  a  tobacco  broker,  and  who  had  been  in  habits  of 
dealing  with  the  defendants,  bought  several  parcels  of  tobacco 
of  them,  and  gave  them  in  payment  a  bill  of  exchange  for 
1198^.  16.S'.,  drawn  by  one  Fisher  on  Rich  and  Heapy,  on  the 
24th  of  September,  1795,  payable  two  months  after  date  to 
J.  Stafford,  who  indorsed  to  Delvalle,  who  indorsed  it  over 
to  the  defendants,  it  having  been  previously  accepted  by  Rich 
and  Heapy.  On  the  12th  of  October,  1795,  the  defendants 
bought  a  quantity  of  woollen  cloths  for  exportation  of  Rich  and 
Heapy,  amounting  to  1237Z.  18s.  3^.  at  twelve  months'  credit ; 
the  goods  were  taken  out  of  one  general  mass  in  Rich  and 
Heapy 's  Warehouse  ;  Rich  and  Heapy  made  out  a  bill  of  parcels 

1359 


13G0  GEORGE    V.    CLAGETT. 

for  the  whole  in  their  own  nunies,  unci  the  detune  hints  did  nut 
know  that  any  part  of  tlie  goods  belonged  to  the  i)hiintiff.  Kurly 
in  November,  171>5,  Kieli  and  lleapy  became  bankrnpts;  and 
afterwards,  on  the  20th  of  the  same  month,  the  ])lainlitT  gave 
the  defendants  notice  not  to  pay  Rich  and  Ileapy  for  certain 
ck)ths  specified,  part  of  the  above,  amounting  to  142/.  l.s.  0./., 
they  having  been  his  property,  and  having  been  sohl  on  liis 
account  by  Mich  and  lleapy  on  commission.  The  (picstion  was, 
Whether  the  defendants  were  or  were  not  entitled  to  set  off 
their  demand  agiiinsi  Rich  and  Heapy  on  the  bill  of  excliange, 
on  the  ground  that  the  derendants  dealt  with  them  as  ])rincipals; 
Lord  Kenyon  was  of  opinion  that  they  were,  as  well  on  [irinciple 
as  on  the  authority  of  Ralxnie  v.  Williams  (a) ;  and  a  verdict 
was  accordingly  found  for  the  defendants. 

A  rule  was  obtained,  calling  on  the  defendants  to  show  cause 
why  the  verdict  should  not  be  set  aside,  and  a  new  trial  had,  on 
the  authority  of  the  case  of  fJstcoft  v.  Milwanl,  Co.  I>ank.  Laws, 
23(;. 

Gibbs  and  Giles  were  now  to  have  shown  cause  against  that 
rule:  but 

Erskine  and  Walton  were  called  upon  to  supj)ort  it.  They 
relied  on  tlie  cases  of  Scrimxhire  v.  Ahierton  (^b},  and  PJsfcott  v. 
Milwanl,  as  reported  in  Co.  Hank.  Laws,  to  show  tiiat  under  the 
circumstances  of  this  case  the  principal  might  resort  to  the 
buyer  at  once,  he  having  given  notice  before  actual  payment 
by  the  defendants  to  the  factors. 

(a)  Rabone,  jun.,v.  Williams,  M.\dx.  goods  in  his  own  name,  the  person 

Sittinirs  after  Mich.  1785;  which  was  contracting  with  him  has  a  right  to 

thus  stated  :  —  Action  for  the  value  consider  liim  to  all  intents  and  pur- 

of   goods  sold  to   the   defendant  by  poses  as  tlie  principal;    and  though 

means  of  the  house  of  Kabone,  sen.,  the   real   principal   may  appear,  and 

and   Co.,   at  Exeter,   factors  to  the  bring  an  action  upon   that  contract 

plaintiff.     The  defendant,  the  vendee  against  the  purchaser  i>f  the  goods, 

of  the  goods,  set  ofl"  a  debt  due  to  yet  that  purchaser   may  set  oil"  any 

him  from  Rabone  and  Co.,  the  fac-  claim  he  may  have  against  the  factor 

tors,  upon  another  account,  alleging  in  answer  to  the  demand  of  the  prin- 

that  the  plaintiff  had  not  appeared  at  cipal.     This  has  been  long  settled." 

all  in  the  transaction,  and  that  credit  Upon  this  opinion,  the  rest,  being  a 

had  l)een  given  by  Kabone  and  Co.,  mere  matter  of  account,  was  referred, 

the  factors,  and  not  by  the  plaintiff.  In  Ba'/ley  v.  Morley,  London  Sittings 

Lord   Mansjii'ld,  Ch.   J. —  "  Where  a  after  Mich.  1788.  Lord  A>h?/oh  recog- 

f actor,  dealing  for  a  principal,  but  nised  the  law  of  this  case, 
concealing    that    principal,    delivers  {h)  2  Str.  1182. 


GEORGE   V.    CLAGETT. 


1361 


But  a  more  accurate  note  of  the  case  of  Estcott  v.  Milward  (a) 
having  now  been  obtained  from  Mr.  J.  Bullei\  before  whom  that 
case  was  tried  and  read: 

The  Court  were  clearly  of  opinion  that  the  directions  given 
by  the  learned  judge  on  the  trial  of  this  cause  were  right,  and 
that  this  case  was  not  distinguishable  from  that  of  Rahorie  v. 
Williams.     Therefore  they 

Discharged  the  rule  (6). 


[The  effect  of  the  Judicature  Act,  1873  (3G  &  37  Vict.  c.  66),  has  been  very 
much  to  enlarge  the  rights  of  defendants  as  regards  set-off.  A  further 
reference  to  the  provisions  of  that  Act  will  be  found  at  the  conclusion  of 
this  note.]  The  decision  in  the  principal  case,  however,  too  clearly  results 
from  principles  of  natural  equity  to  need  much  discussion  or  Explanation. 
It  has  ever  since  been  followed.  See  Cnates  v.  Letves,  1  Camp.  444 ;  Black- 
burn V.  Scholes,  2  Camp.  343;  Carr  v.  Hinchliff,  4  B.  &  C.  551;  Taylor  v. 
Kymer,  3  B  &  Ad.  334;  Bastable  v.  Poole,  5  Tyrwh.  Ill;  Purchell  v.  Salter, 
9  Dowl.  517;  S.  C.  1  Q.  B.  197;   [  Wilson  v.  Gabriel,  4  B.  &  S.  243;  Kaltenbach 


(«)  London  Sittings  after  Mich. 
1783.  Action  for  goods  sold.  The 
goods  were  sold  by  Farrar,  a  corn 
factor,  who  gave  no  account  of  the 
sale  to  tlie  plaintiff,  nor  made  any 
entry  of  it  in  his  books.  He  was  in- 
solvent for  some  time  before,  and 
avoided  all  dealing  for  a  month,  had 
desired  that  there  might  be  no  buy- 
ing in  his  name,  and  had  not  dealt 
with  the  defendant  for  a  year  before, 
but  was  then  in  his  debt.  Tliere 
was  a  verdict  for  the  plaintiff  on  the 
ground  of  fraud. 

(6)  The  same  point  was  also  ruled 
by  Lord  Kenyan  in  Stracoy,  Ross,  and 
others  v.  Deey,  London  Sittings  after 
Midi.  1789.  As.sumpsit  for  goods 
sold ;  pleas  non  assumpsit  and  a  set- 
off. The  plaintiffs  jointly  carried  on 
trade  as  grocers,  but  Ross  was  the 
only  ostensilile  person  engaged  in  the 
business,  and  appeared  to  tlie  world 
as  solely  interested  therein.  By  the 
terms  of  the  partnership,  Ross  was 
to  be  the  apparent  trader,  and  the 
others  were  to  remain  mere  sleeping 
partners.  The  defendant  was  a  pol- 
icy-broiler,   and   being   indebted    for 


grocei-y  (as  he  conceived)  to  Ross, 
he  effected  insurances  and  paid  pre- 
miums on  account  of  Ross  solely,  to 
the  amount  of  his  debt,  under  the 
idea  that  one  demand  might  be  set 
off  against  the  other.  Ross's  affairs 
being  much  deranged,  payment  qt  the 
money  due  from  the  defendant  was 
demanded  by  the  firm,  and  was  re- 
fused by  him  upon  the  ground  of  his 
having  been  deceived  by  the  other 
partners  keeping  back,  and  holding 
out  Ross  as  the  only  person  con- 
cerned in  the  trade.  Lord  Kenyan, 
Cli.  J.,  was  of  opinion,  tliat  as  the 
defendant  had  a  good  defence  by  way 
of  set-off  as  against  Ross,  and  had 
been  by  the  conduct  of  the  plaintiffs 
led  to  believe  that  Ross  was  the  only 
person  he  contracted  with,  they  could 
not  now  pull  off  the  mask  and  claim 
payment  of  debts  supposed  to  be  due 
to  Ross  alone,  without  allowing  the 
parties  the  same  advantages  and  equi- 
ties in  their  defence  tliat  they  would 
have  had  in  actions  brought  by  Ross. 
—  Verdict  for  the  defendant.  [S.  C. 
2  Esp.  469  n.] 


1362  GEORGK    V.    CLAGETT. 

V.  Lfirin,  10  App.  Cas.  017;  .'>.">  L.  J.  Ch.  58];  and  Sims  v.  Bond,  o  B.  &  A<1. 
;50;i,  wliero  the  nili"  is  thus  expressed  by  the  Lord  C.  J.,  delivering  tlie  juil};- 
n)eiit  of  the  court:  —  'It  is  a  \veU-estal)lisiied  rule  of  law,  tliat  wliere  a 
contract,  not  under  seal,  is  made  with  an  a^ent  in  liis  own  name  for  an 
undisclosed  principal,  eitiier  the  ajjent,  or  the  priucipal,  may  sue  upon  it;  the 
defendant,  in  tlie  latter  case,  l)eii)i;  entitled  to  be  placed  in  the  same  situation 
at  the  time  of  the  disclosure  of  tlie  real  principal,  as  if  the  ajjent  had  been 
the  contractinj;  party."  (AV/;  further  on  this  subject  in  thf  notes  to  Paterson  v. 
Ganddseijui,  .itlUison  v.  (iitndaseipii,  aiul  Thomson  v.  Dmenjiort,  ]>ost.) 

However,  the  latter  part  of  this  rule  only  a|)|)lics  where  the  party  contract- 
ini;  has  not  the  means  of  knowing  that  the  party  with  whom  he  contracts  is 
but  an  aiicnt.  If  he  have  the  means  of  knowini;,  and  thouiih  he  nuiy  not 
be  exi)ressly  told,  still  must  be  supposed  to  have  known,  that  he  was  dealing 
not  with  a  principal,  Init  with  an  a;;cnt,  tiie  reason  of  the  al)ove  rule  ceases, 
and  tneii  ressinte  ratione,  ressnt  lex. 

Thus  in  Bnnmj  v.  Corrie,  2  H.  &  A.  l.?7.  Coles  and  Co.,  who  were  l)rokcrs, 
and  also  m^'rchants,  sold  to  Corrie  and  Co.,  in  their  own  names,  sugars 
belonginj^  to  Barini;  Hrotliers  and  Co.,  who  broujjht  this  action  for  their 
price.  The  true  nature  of  the  contract  was  entered  l)y  Coles  and  Co.  in  their 
broker's  book,  which  the  defendants  nni^ht,  if  they  pleased,  have  seen.  Nor 
bad  Coles  and  Co.  the  possession  of  the  sugars,  which  were  lyintr  in  the  \V.  I. 
Docks,  whence,  by  tlie  usasje  of  the  docks,  they  could  not  iiave  been  taken 
without  the  order  of  the  plaintiMs,  wiiose  princi|)al  clerk  siirned  tin-  dciivcry 
order.  Under  tiiese  circumstances,  the  court  held  that  the  defendants  had 
no  riirht  to  set  oil"  ayainst  tlie  plaintitts'  demand  for  the  price  of  the  {joods,  a 
debt  due  to  them  from  Coles  and  Co.  "  It  is  to  be  observed,"  said  Bayley,  J., 
"  that  the  plaintiffs  did  not  trust  the  brokers  with  either  the  muniments  of 
title,  or  the  possession  of  the  goods,  as  was  done  in  both  the  cases  of  Rahone 
v.  Williams,  and  Geovfje  v.  CUujett.  There  is  another  circumstance  by  which 
the  defendants  might  easily  have  ascertained  whether  Coles  and  Co.  acted  as 
brokers  or  not.  According  to  the  usual  course  of  dealing,  a  broker  is  Ixmnd 
to  put  down  in  his  book  an  account  of  the  sales  made  by  him  in  that  cajiacity, 
so  that  if  the  defendants  had  asked  to  sec  the  book,  they  would  instantly 
have  iliscovered  whether  Coles  and  Co.  acted  as  brokers  or  not.  I  therefore 
think,  that  the  plaintiffs  did  not  by  their  conduct  enable  Coles  and  Co.  to  hold 
themselves  out  as  the  proprietors  of  these  goods  so  as  to  impose  on  the 
defendants ;  that  the  def entlants  were  not  imposed  on ;  and  even  supposing 
that  they  were,  they  must  have  been  guilty  of  gross  negligence.  ...  I  cannot 
think  that  the  defendants  believed,  when  they  bought  the  goods,  that  Coles 
and  Co.  sold  them  on  their  own  account;  and  if  not,  they  can  have  no  defence 
to  this  action."  See  fui'ther  Maanss  v.  Henderson,  1  East,  .335;  Moore  v. 
Clementson,  2  Camp.  22.  [Borries  v.  Imperial  Ottoman  Bank,  L.  R.  9  C.  P.  38, 
43  L.  J.  C.  P.  3,  and  Cooke  v.  Eshelhy,  H.  L.,  15th  March,  1887,  where  the 
defendants,  though  they  dealt  with  the  broker  as  principal,  had  no  belief  one 
Avay  or  the  other  whether  he  was  acting  for  himself  or  for  another  person  in 
the  transaction,  and  were  therefore  debarred  from  setting  off  suras  due  to 
them  from  the  broker  against  the  claim  of  the  principal.] 

In  the  case  of  Warner  v.  M'Kay,  1  M.  &  W.  595,  it  was  held  by  the  Court 
of  Exchequer,  that  a  purchaser  might  set  off  payments  made  to  a  factor,  if 
he  believed  that  the  factor  had  a  right  to  sell,  and  did  sell,  to  repay  himself 
advances;  but  see  the  observations  on  this  case  in  the  judgment  in  Smart  v. 
Sandars,  3  C.  B.  399.  and  per  Cresswell,  J.,  in  Fish  v.  Kempton,  7  C.  B.  094, 


GEOEGE   V.    CLAGETT.  1363 

where  it  was  held  that  knowledge,  by  the  purchaser  of  goods,  that  the  vendor 
sold  them  as  factor  disentitled  him  to  set  off  a  debt  due  by  such  factor  in  an 
action  by  the  principal.  The  set-off,  however,  to  be  available,  need  not  exist 
at  the  time  of  the  sale :  if  it  arise  before  notice  of  the  real  ownership  it  is 
sufficient.  See  the  observations  of  Parke,  B.,  in  Salter  v.  Purchell,  1  Q.  B. 
213;  and  in  Stracey,  Eoss,  and  others  v.  Deey,  ante,  p.  132,  note  (c),  it  will  be 
seen  that  the  debt  Avhich  was  set  off  became  due  after  the  sale  of  the  goods, 
to  the  partner  who  was  allowed  to  act  as  apparent  owner  of  the  goods  sold. 

[In  order  to  make  a  valid  defence  within  the  rule  laid  down  in  the  principal 
case,  it  is  necessary  to  show,  that  the  contract  ^vas  made  witli  a  person  whom 
the  plaintiff  had  intrusted  with  the  possession  of  the  goods ;  that  that  person 
sold  them  as  his  own  in  liis  own  name,  as  principal,  with  the  authority  of  the 
plaintiff;  that  the  defendant  dealt  with  him  as,  and  believed  him  to  be,  the 
principal  in  the  transaction ;  and  that  before  the  defendant  was  undeceived  in 
that  respect,  the  set-off  accrued.  See  the  judgment  of  the  Court  of  Common 
Pleas  in  Semenza  v.  BrinsJey,  18  C.  B.  N.  S.  467,  which  was  decided  on 
demurrer.  But  constructive  authority  is  sufficient;  therefore  if  the  goods 
be  intrusted  to  a  factor,  wiio  has  by  custom  an  implied  authority  to  sell  in 
his  own  name,  the  right  of  set-off  will  not  be  defeated  by  showing  a  private 
prohibition  from  the  principal  to  the  factor  to  sell  in  his  own  name.  Ex  parte 
Dixon,  4  Ch.  D.  133.  Under  the  late  system  of  pleading,  means  of  knowledge 
need  not  have  been  expressly  negatived  in  the  plea,  Borries  v.  The  Imperial 
Ottoman  Bank,  L.  R.  9  C.  P.  38,  43  L.  J.  C.  P.  3.  And  where  the  purchaser's 
agent  knows  that  the  seller  is  only  an  agent,  there  can  be  no  set-off,  although 
the  purchaser  himself  is  not  informed  of  the  real  facts.  Dresser  v.  Norwood, 
17  C.  B.  N.  S.  466. 

In  Turner  v.  Thomas,  L.  R.  6  C.  P.  610,  it  was  sought  to  extend  the  princi- 
ple of  George  v.  Glagett  to  a  case  in  which  the  claim  was  for  unliquidated 
damages.  The  action  was  by  seller  against  buyer  upon  a  contract  for  the 
purchase  of  goods  to  arrive,  and  the  agent,  with  whom  the  defendant  had 
dealt  in  the  belief  that  he  was  the  owner  of  the  goods  sold,  having  become 
bankrupt,  the  defendant  sought  to  avail  himself  against  the  principal  of  a 
mutual  credit  with  the  agent.  The  court  disallowed  the  set-off  on  the  ground 
that  it  could  not  be  maintained  against  a  claim  for  unliquidated  damages,  and 
that  the  defence  set  up  was  not  a  defence  against  the  factor,  but  only  a 
special  mode  of  settling  account  with  his  assignees  upon  his  bankruptcy,  and 
consequently  did  not  come  within  the  principle  of  George  v.  Clagett.  Query 
as  to  the  effect  of  Order  XIX.  Rule  3,  under  the  Judicature  Acts  upon  cases 
of  this  class.] 

Where  the  goods  are  sold  by  an  agent  as  his  OAvn,  the  buyer  knowing  noth- 
ing at  the  time  of  his  principal,  and  the  action  is  brought  in  the  name  of  the 
agent,  the  defendant  [could  not  before  the  introduction  of  equitable  defences 
have]  set  off  [at  law]  a  debt  due  to  him  from  the  principal.  For  in  this  case 
there  is  no  concealment  which  can  be  in  any  way  injurious  to  the  buyer,  nor 
is  his  position  at  all  altered  by  the  mode  in  which  the  action  is  brought :  and 
the  statutes  of  set-off  only  apply  to  cases  in  which  the  mutual  debts  are  due 
from  the  plaintiff,  and  fi-om  the  defendant:  see  the  notes  to  Thomson  v. 
Davenport,  post,  and  the  judgment  of  the  court  in  Isberg  v.  Boicden,  8  Exch. 
852. 

[Still  courts  of  law  have  frequently  allow'ed  pleas  of  set-off  on  equitable 
grounds  in  cases  subsequent  to  Isberg  v.  Bowden,  on  allegations  similar  to 
those  alleged  in  the  plea  in  that  case,  viz.,  that  the  plaintiff  was  suing  as  a 


loG4  UEOUGE    V.    CLAUETT. 

bare  trustee  for  a  third  person  ai;a'mst  whom  the  defendant  hail  a  set-off,  and 
had  no  beneficial  intere«it  himself  in  the  snni  sou^iit  tt)  he  recovered  (see 
Agra  and  Masterman's  linnk  v.  Leighttni,  L.  U.  2  Ex.  at];  Thornton  v.  Mny- 
nard,  L.  K.  10  C.  V.  0'jr>,  44  L.  J.  C.  P.  382;  IJoltnea  v.  Tuttun,  5  E.  i  H.  65, 
and  Cochrane  v.  Green,  U  C.  B.  N.  S.  448;  28  L.  J.  C.  1*.  3).  thus  practically 
recurrinfj  to  the  view  taken  in  earlier  decisions  at  law,  see  Bottouiley  v. 
Brook,  1  T.  R.  621;  liitdye  v.  liirch,  ibid.  622.  It  would  seem,  however,  that 
the  rule  of  e<|uity  has  Ijeen  stated  too  broadly  in  some  of  the  cases  at  law, 
notably  in  Cochrane  v.  Cnen,  9  C.  B.  N.  S.  448;  30  L.  J.  V.  V  1)7.  .  For  to 
found  such  an  etjuity  it  is  not  enough,  as  appears  to  have  been  assumed  in 
that  case,  to  show  that  the  plaiiititl'  is  a  bare  trustee;  tliere  must  lie  inde- 
pendent ;;rounds  fjivlnj;  the  Court  of  Etpiity  jurisdiction  and  callini;  for  its 
intervention  to  eidarjie  the  statutable  rijjht  of  set-oil".  See  the  Judi;ment  of 
Jessel,  M.  U.,  in  h'x  parte  Xtii/ee,  L.  K.  20  K«i.  29.] 

Similar  In  i>rinclplc  to  the  decision  In  (I'ronf  v.  Claijett  Is  that  of  Starkiroo<l 
V.  Dunn.  :\  t^.  B.  822,  where  It  was  held  that  In  an  action  of  indebitatus  as- 
sumiisit  ai;ainst  .V.,  he  miijlit  plead  tliat  the  prondses  were  made  by  himself 
and  B.  jointly,  and  that  they  had  a  set-ot!'.  So  also  the  case  of  a  partner 
allowed  by  the  llrm  to  appear  as  the  sole  owner  of  partnership  property.  See 
Cordon  V.  Kltis,  2  V.  B.  w21  [and  compare  .s>Mrr  v.  Cass,  L.  l{.  .".  Q.  B.  CSC]. 

The  dt'cision  in  Starkirond  v.  Dnnn,  besides  l)elni;  obviously  just.  Is  in  sub- 
stance consistent  with  the  laniiuaye  of  the  statutes  of  .set-off  (2  (Jeo.  2,  c.  22, 
and  8  (Jeo.  2,  c.  24),  which  jjlve  the  statutory  rljjht  of  set-otV  in  cases  in 
which  there  are  mutual  debts  "  beticeen  the  plaintiff  and  defendant."  See  the 
juilj^meut  in  Isbenj  v.  Hoirden,  uhi  sup. 

[The  provisions  of  t!u>  ronunon  Luw  I'rocedure  .\ct.  IHC.O  (23  &  24  Vict.  e. 
12<i),  which,  with  an  e.\tended  riirht  of  joiiniii;  |iartics  as  piaintitt's  in  actions, 
fjave  an,  extended  ri^ht  of  set-off  to  defendants,  have  been  still  furtlier  en- 
lar^jjed  l)y  the  .ludicalure  Act,  1873,  and  the  rules  made  pursuant  to  the  .Judi- 
cature .Vet,  lH7r). 

By  these  enactnu-nts  it  is  competent  for  a  defendant  to  set  oil* or  set  up,  by 
way  of  counter-claim  a<rainst  the  claims  of  the  plaiutill*,  any  right  or  claim, 
whether  soundina;  in  damages  or  not,  and  the  court  and  every  judjje  thereof 
is  empowered  to  grant  to  any  defendant,  in  respect  of  any  equitable  estate  or 
right,  as  well  as  any  legal  estate  or  right  claimed  by  him,  all  such  relief  as 
he  shall  have  properly  claimed  by  his  pleading,  and  as  the  said  court  or  any 
judge  tliereof  might  have  grantetl  in  any  s\iit  instituted  for  that  purpose  by 
tlie  same  defendant  against  the  same  plaintitl'.  Tliere  are  also  provisions  en- 
abling the  courts  to  give  a  remedy  or  relief  to  defendants  wlio  claim  to  have 
rights  over  against  third  parties.  See  Judicature  Act,  1873,  s.  24.  and  U.  S. 
C.  Order  XIX.,  r.  3 ;  Order  XVI.,  r.  48,  et  seq. 


A  RECENT  carefully  considered  opinion  of  the  supreme  court 
of  the  state  of  New  York  in  the  t'ase  of  Nichols  v.  Martin,  35 
Hun  168,  is  valuable  not  only  as  illustrating  the  tendency  of 
most  American  courts  in  dealing  with  cases  analogous  to  the 
principal  case,  but  also  because  treating  incidentally  of  many 
of  the  questions  apt  to  arise  in  cases  of  this  character. 


GEORGE   V.    CLAGETT.  1365 

In  Nichols  v.  Martin,  one  Isaac  Depuysolcl  and  delivered  to  the 
defendants  a  quantity  of  wheat,  and  received  in  payment  their 
promissory  note  for  the  price  of  the  wheat  payable  to  his  order 
in  sixty  days.  Thereafter,  but  before  the  maturity  of  the  note,' 
the  defendants  purchased  for  the  trifling  sum  of  *^5  an  overdue 
note  made  by  Depuy  to  a  thu'd  party  for  a  sum  in  excess  of  the 
amount  of  the  note  given  by  them  to  Depuy.  As  a  matter  of 
fact,  the  wheat  sold  by  Depuy  belonged  to  his  wife,  and  was 
sold  by  him  as  her  agent ;  but  he  had  the  possession  of  the  same, 
and  defendants  at  the  time  of  purchasing  supposed  he  was  the 
real  owner.  At  the  time  of  the  maturity  of  the  note  given  by 
the  defendants  to  Depuy,  the  latter  informed  the  former  that 
the  wheat  belonged  to  his  wife,  but  they  refused  to  pay  for  the 
same,  claiming  the  right  to  set-off  the  amount  of  his  note  held 
by  them.  In  an  action  brought  against  the  defendants  by  an 
assignee  of  the  note,  the  general  term  held  that  in  no  event 
were  the  defendants  entitled  to  a  set-off  for  a  greater  amount 
than  the  $o  actually  paid  by  them  for  the  note.  The  court 
say :  "  This  rule  invoked  in  support  of  the  defence  is  quite  well 
defined  by  authority,  and  is  a  somewhat  qualified  one  based 
upon  principles  of  natural  equity.  ...  In  all  the  cases  before 
cited,  and  all  to  which  attention  has  been  called,  the  debtor's 
claims  against  the  agent,  which  were  allowed  to  be  set  off  by 
the  purchaser  as  against  the  principal,  existed  at  the  time  of 
the  purchase,  or  were  created  by  dealings  between  the  purchaser 
and  the  agent  at  and  during  the  time  that  he  was  supposed  to 
be  the  principal  in  the  transaction  of  the  sale.  And  the  equita- 
ble principle  applied  in  support  of  this  right  of  the  purchaser 
is  that  where  one  of  two  innocent  persons  must  suffer,  the  loss 
should  fall  on  him  who  has  given  the  opportunity  to  cause  it. 
It  is  not  in  its  purpose  unlike  the  doctrine  which  supports 
estoppel  in  pais,  although  not  dependent  upon  the  same  circum- 
stances. .  .  .  They  should  not,  in  view  of  the  equitable  rule 
which  gives  relief,  be  permitted  to  sj)eculate  on  his  [the  princi- 
pal's] misfortune." 

The  rule  of  law  laid  down  in  Nichols  v.  Martin  is  significant 
as  indicating'  a  desire  of  American  courts  to  limit  somewhat  the 
application  of  the  doctrine  of  George  v.  Clagett,  or  at  least  to 
keep  that  doctrine  within  its  original  limits.  That  the  decision 
in  Nichols  v.  Martin  is  fair  and  equitable  seems  beyond  ques- 
tion, yet  it  is  by  no  means  certain  that  the  case  would  be  fol- 


13GG  uEuK(Ji:  V.  ('LA<ji:tt. 

lowed  ill  olluT  jurisdictions.  If  u  coiul  htld  that  the  only 
effect  of  the  principle  established  by  George  v.  C'lagett  is  that 
one  dealing  in  good  faith  witli  a  factor  or  agent  having  posses- 
sion of  the  goods  of  another,  with  that  other's  consent,  is  to  \te 
protected  against  loss,  occasioiicd  l»y  his  mistaken  belief  that 
sneh  factor  or  agent  is  the  real  owner,  then  Nichols  v.  Martin 
should  l)e  followed.  But  if  the  scope  of  (Jeorge  v.  Clagett  is 
regarded  as  wider  than  the  reason  for  the  decision,  the  opinion 
of  the  New  York  supreme  court  would  very  likely  not  obtain. 
In  fact  the  general  term  of  the  Court  of  Common  Pleas  of  New 
York  city,  a  court  with  a  jurisdiction  practically  co-ordinate 
with  the  supreme  court  of  that  state,  have  laid  down  princi- 
l)les  in  conflict  with  the  rule  of  Nichols  v.  Martin,  in  the  case  of 
Jianiu'rman  v.  (^uaekenbush,  11  Daly  ")-!•.  In  Bannerman  v. 
Quackeid)ush,  the  defendants,  desiring  to  purcluise  goods  from 
a  certain  company,  bought  a  promissory  iu>te  of  that  company 
part  due,  l>aying  for  it  an  amount  nHu;h  less  than  the  face, 
intending  to  use  it  for  the  i)ayment  of  the  goods,  and  ordered 
the  goods,  promising  to  pay  cash  for  them.  The  company  had 
previously  sold  all  its  goods  of  this  nature  to  the  plaintilY,  but 
he  agreed  with  the  company  to  lill  the  order  and  allow  the 
company  a  commission  therefor.  The  company  delivered  the 
plaintiff's  goods  to  the  defendants  with  a  bill  of  lading  for  the 
same  in  the  company's  name,  and  the  defendants  supposed  the 
goods  were  the  company's.  Defendants  obtained  possession 
without  paying  cash,  on  the  pretext  that  they  wished  before 
paying  for  them  to  oljtain  their  pay  from  the  party  for  whom 
they  were  purchasing.  Later,  when  payment  was  demanded, 
defendants  tendered  the  company's  overdue  note  in  part  pay- 
ment. The  learned  justice  delivering  the  opinion  of  the  Court 
of  Common  Pleas  says :  -"  The  off-set  was  not  one  arising  out 
of  any  transactions  between  the  defendants  and  the  Renz  Hard- 
ware Company,  but  the  defendants,  after  they  had  obtained  an 
order  for  a  certain  quantity  of  an  article  which  that  company 
manufactured,  and  from  whom  they  meant  to  purchase  it,  went 
and  bought  the  depreciated  paper  of  the  company  at  the  enormous 
discount  of  79  per  cent.,  that  they  might  make  8367  out  of  an 
order  for  goods  for  which  they  were  to  pay  but  $522.  .  .  .  But 
notwithstanding  these  circumstances,  I  think  upon  the  authori- 
ties that  if  the  defendants  had  the  right  to  assume  when  they 
purchased  the  goods  that  the  company  Avas  the  owner  of  them. 


GEORGE   V.    CLAGETT.  1367 

they  had  the  right  in  this  action  to  set-off  the  note  a  valid 
demand  which  they  had  against  the  company."  This  is  cer- 
tainly carrying  the  doctrine  of  George  v.  Clagett  far  further  than 
any  other  d(^cision  either  in  England  or  America  has  gone,  and 
the  result  reached  seems  harsh  and  inequitable.  It  is  certainly 
a  perversion  of  the  spirit  of  the  rule  of  George  v.  Clagett,  which 
^was  to  protect  an  innocent  outsider  whom  a  princij)al  had  mis- 
led by  conferring  apparent  ownership  on  his  factor  or  agent. 
It  was  not  intended  to  be  used  as  a  shield,  so  as  to  make  every 
right  of  the  real  owner  subordinate  to  the  right  of  the  third 
party  dealing  with  such  agent,  to  gain  every  possible  advantage 
from  the  transaction.  Yet  it  may  be  that  this  decision  is  but  a 
logical  extension  of  doctrine  of  the  undisclosed  principal,  that 
the  principal  is  affected  with  all  the  attendant  burdens  in  the 
transaction,  and  is  chargeable  with  everything  that  could  be 
charged  against  the  agent. 

Principle  of  George  v.  Clagett  followed  in  America.  —  That  the 
general  principle  of  law  enunciated  in  George  v.  Clagett  pre- 
vails in  America,  is  axiomatic.  It  is  only  in  the  application  of 
the  rule  to  special  cases  that  American  decisions  sometimes 
come  into  seeming  conflict.  That  a  purchaser  from  an  agent 
or  factor,  who  has  apparent  ownership)  and  possession  of  goods 
really  belonging  to  an  unknown  principal,  with  the  latter's  as- 
sent, buying  in  ignorance  of  the  real  ownership  and  without 
circumstances  to  awaken  his  inquiry  as  to  it,  may  set-off  against 
the  demand  of  the  principal  any  claims  or  demands  he  has 
against  such  factor  or  agent,  is  established  by  the  following 
cases :  Gardner  v.  Allen,  6  Ala.  187  ;  Stinon  v.  Gould,  74  111. 
80;  Traubt;.  Milliken,  57  Me.  63;  Baltimore  Tar  Man.  Co.  v. 
Fletcher,  17  Rep.  557  (Court  of  Appeals  of  Maryland) ;  Hun- 
tington V.  Knox,  7  Cush.  371 ;  Locke  v.  Lewis,  124  Mass.  1 ; 
Dean  v.  Plunkett,  136  Mass.  195 ;  Hickman  v.  Craig,  6  Mo.  Ap. 
583  ;  Pratt  v.  Collins,  20  Hun  127 ;  McLachlin  v.  Brett,  105 
N.  Y.  391 ;  Nichols  v.  Martin,  uM  supra  ;  Bannerman  v.  Quack- 
enbush,  uhi  supra;  Frame  v.  William  Penn  Coal  Company,  97 
Pa.  St.  309 ;  Conyers  v.  Magratli,  4  McCord  394. 

Knowledge  of  the  purchaser  of  the  real  facts  will  defeat  his 
right  of  set-off.  —  The  rule  in  George  v.  Clagett  does  not  obtain 
where  the  purchaser  knows  the  agent  is  not  the  owner,  or  where 
circumstances  are  brought  to  his  knowledge,  by  investigating 
which  he  might  have  ascertained  that  the  agent  was  not  the 


1368  GEORGE   V.   CLAGETT. 

owner;  Bernshouse  v.  Abbott,  10  Vroom  531 ;  Stewart  v.  Wood- 
ward, 50  Vt.  81;  \Vrif,dit  v.  Cabot,  89  N.  Y.  574;  Crosby  v. 
Hill,  15  Rt'p.  758  (Supreme  Court  of  Oliio);  Dunn  v.  Wriyht, 
61  Barb.  250 ;  Miller  v.  Lea,  35  Md.  390,  where  Alvey,  J.,  says, 
"  Hence  if  the  character  of  the  selling  is  equivocal,  if  he  is 
known  to  be  in  the  habit  of  selling  sometimes  as  principal  and 
sometimes  as  agent,  a  purchaser  who  buys  with  a  view  of  cov- 
ering his  own  debt  and  availing  himself  of  a  set-off  is  bound  to 
inquire  in  what  character  he  acts  in  the  particular  transaction ; 
and  if  he  chooses  to  make  no  iuipiiry,  and  it  should  turn  out 
that  he  has  bought  of  an  undisclosed  principal,  he  will  be  denied 
tlie  l)enefit  of  his  set-off." 

Mere  public  rumor,  or  matters  known  to  other  persons,  but 
not  brought  to  the  knowledge  of  the  purchaser,  will  not  defeat 
his  right  of  set-off.      Pratt  r.  Collins,  20  Hun  127. 

Partners  entrusting  firm  property  to  one  partner  liable  to  have  a 
bonS  fide  purchaser  set-off  the  indebtedness  of  the  individual  part- 
ner.—  If  a  partnership  so  entrusts  goods  belonging  to  it  to  a 
partner  as  agent,  so  as  to  enable  him  to  deal  with  them  as  his 
own,  a  person  who  in  ignorance  of  his  agency  buys  such  goods 
of  him,  would  be  allowed  the  right  of  paying  for  them  in  the 
manner  agreed  U})on  by  the  partner,  and  would  have  the  right 
to  set-off  a  debt  of  that  partner  to  him;  Dean  v.  Plunkett,  130 
Mass.  195. 

Contrary  American  decisions.  —  The  eases  of  Conable  v.  L3'nch, 
45  IoA\a  84,  and  lirow  ii  r.  .Morris,  83  N.  C.  251,  while  not  pro- 
fessing to  disregard  the  principle  of  George  v.  Clagett,  un- 
doubtedly do  practically  nullify  its  effect  and  must  be  regarded 
as  contrary  to  the  authorities. 

Can  the  rule  be  invoked  in  executory  contracts?  —  A  late  de- 
cision of  the  Court  of  Appeals  of  the  state  of  >*'ew  York  lays 
down  the  rule  that  where  the  contract  is  executoiy,  and  before 
the  goods  are  delivered  to  the  purchaser,  he  is  informed  that 
they  are  not  the  property  of  the  party  v.'ith  whom  he  con- 
tracted but  belong  to  a  third  person ;  then  by  receiving  a  deliv- 
ery under  the  circumstances  the  pvirchaser  waives  all  right  to 
set-off  an  indebtedness  of  the  agent  to  him  in  an  action  for  the 
purchase  price  brought  against  him  by  the  real  owner ;  McLach- 
lin  V.  Brett,  105  N.  Y.  391.  The  opinion  of  Mr.  Justice  Finch 
turns  on  the  fact  that  in  this  case,  when  receiving  the  goods 
bought,  the  purchaser  was  not  acting  in  the  dark  as  to  the  real 


GEORGE   V.    CLAGETT.  1369 

ownership,  and  that  until  such  acceptance  no  right  of  set-off 
accrued.  And  the  conclusion  of  the  court  is  sound  and  just, 
provided  the  purchaser  had  the  option  to  refuse  to  receive  the 
goods  on  ascertaining  the  real  facts  as  to  their  ownership. 
There  is  a  strong  dictum  of  the  court  that  he  would  have  such 
an  option.  But  that  question  is  not  apparently  as  free  from 
doubt  as  the  court  seemed  to  regard  it. 

Right  of  set-off  against  the  agent  of  a  debt  due  the  defendant  by 
his  principal.  —  In  Young  V.  Thurber,  91  N.  Y.  390,  we  have  the 
circumstances  of  the  principal  case  reversed.  In  this  case  the 
assignee  of  the  agent  sued  the  defendants  for  certain  merchan- 
dise sold  them  by  said  agent.  The  goods  belonged  to  an  in- 
corporated company  which  was  insolvent  at  the  time,  but  at 
the  time  of  the  purchase  the  defendants  supposed  the  goods 
were  the  agent's.  The  defendants  attempted  to  set-off  certain 
claims  of  this  company  owing  them,  attempting  to  invoke  the 
rule  in  George  v.  Clagett  as  an  equitable  reason  for  the  allow- 
ance of  such  set-off.  The  court  disallowed  the  set-off,  but 
rested  their  decision  on  the  fact  that  the  arrangement  between 
the  agent  and  the  company  was  one  by  which  the  former  made 
advances  to  the  latter  for  the  goods  consigned,  and  was  to 
reimburse  himself  out  of  the  proceeds  of  the  sale,  and  that, 
under  such  arrangement,  he  did  make  advances  exceeding  the 
value  of  the  goods  consigned.  There  is  no  need  to  say  the 
decision  of  the  particular  case  was  right.  The  defendants  had 
not  contracted  with  reference  to  a  possibility  of  setting  off  their 
claim  against  the  principal,  for  they  then  did  not  know  that 
principal  had  any  interest  in  the  property.  Whereas,  the  agent 
had  sold  with  the  express  purpose  of  indemnifying  himself 
from  the  proceeds  against  the  money  he  had  advanced  for 
that  principal.  But  if  we  suppose  a  case  where  no  equities 
remained  to  be  adjusted  between  the  agent  and  the  principal, 
would  a  purchaser's  right  of  set-off  of  a  claim  due  him  from  the 
principal  then  attach  in  a  suit  brought  by  the  agent?  Although 
he  did  not  purchase  expecting  to  exercise  such  a  right,  so  that 
the  principal  cannot  be  said  to  have  misled  hira,  as  in  George  v. 
Clagett,  yet  the  set-off  is,  it  would  seem,  allowable.  The  real 
party  in  interest  is  the  principal,  —  a  party  indebted  to  the  de- 
fendant. Had  that  principal  himself  been  the  actor  in  the  suit, 
the  right  of  set-off  would,  of  course,  have  existed.  Because  the 
plaintiff  happens  to  be  his  agent  the  principal  should  not  be 


1370  GEOUCIK    V.    CLACJKTT. 

permitted  to  avoid  tin-  \vi^d\  consLMiuciict's  of  ihc  state  of 
accounts  ])etvveen  the  piucliaser  and  hinisi-lf.  'I'liis  correlative 
ri<,dit  of  the  }>iU('hascr  in  these  eases  to  sot-<»tT  the  debt  of  the 
principal  in  a  suit  hrou<,d»t  by  the  agent  is  nuiintained  by  a 
writer  of  the  hii^hest  authority.  See  Story  on  Agency,  9th  ed. 
§§  404,  4()r>,  4UT  ;  and  see,  also,  the  remarks  of  Collier,  ('.  J., 
in  the  ciuse  of  (jrar<lner  v.  Allen,  0  Ala.  187.  '•  i'he  autlu)ri- 
ties  cited  very  fully  show  that  it  is  quite  immaterial  whether 
the  principal  or  his  agent  is  the  plaintiff.  If  the  latter  sue, 
the  defendant  may  avail  himself  of  any  claim  which  he  has 
against  the  former,  or  if  the  former  be  the  actor  in  the  suit  the 
purchaser  niay  set-oft"  any  claiMi  which  he  has  against  (he  latter, 
if  he  i)nrchased  under  a  just  i)elief  authorized  by  the  facts  that 
the  agent  was  the  real  owner."  And  it  will  l)e  W(dl  in  this 
connection  to  consider  the  ease;  liuilbert  r.  The  I'acilic 
Insurance  Co.,  "2  Sunni.  471,  as  indicating  how  fully  the  idea 
of  the  real  i)ariy  in  interest  is  ind)edded  in  our  Liw.  In  that 
case,  where  an  agent  had  effected  insurance  for  the  benelit  of 
whom  it  may  concern,  and  brought  a  suit  in  his  own  name  on 
the  policy,  the  company  was  not  allowed  to  set-f)fT  the  agent's 
own  debt  to  it.  And  see,  also,  for  the  same  purpose,  Royce  v. 
Uanies,  11  Met.  276,  a  case  in  point  as  showing  the  disposition 
made  of  cases  where  the  agent  sues. 

Agent  in  such  case  if  sued  cannot  set-off  a  debt  due  his  prin- 
cipal by  the  third  party.  —  \W'  have  thus  far  considered  the  cases 
where  the  piincipal  or  the  agent  or  factor  is  the  moving  i)arty 
in  the  litigation.  Before  closing  the  subject  it  will  be  well  very 
briefly  to  see  wh.at  rights  of  set-off,  if  any,  they  may  have  against 
such  third  party  wdien  sued  by  him.  Su[)pose  in  a  case  like 
George  v.  Clagett  the  factor  or  agent  had  been  the  purchaser 
instead  of  the  seller.  If  sued  by  the  seller  for  the  purchase 
price,  he  could  of  course  set-off  any  claims  he  had  against  the 
seller.  Could  he  set-off  a  claim  his  principal,  for  whom  lie  pur- 
chased, had  against  the  seller?  Certainly,  if  his  principal 
assented,  there  woidd  be  no  objection  on  principles  of  equity, 
and  it  would  seem  a  proper  way  to  adjust  the  equities  between 
the  parties.  The  seller  is  here  allowed  by  the  law  to  charge 
one  with  an  obligation  which  in  truth  was  the  obligation  of 
another,  and  it  is  no  injustice  to  allow  set-off  against  his  claim 
a  valid  indebtedness  of  the  real  party  to  the  sale,  provided  that 
party  agrees.     The  authority,  however,  is  apparently  the  other 


GEOKGE   V.    CLAGETT.  1371 

way ;  Waterman  on  Set-off,  §  52  ;  Forney  v.  Shipp,  4  N.  C.  527  ; 
bnt  see  Story  on  Agency,  9tli  ed.  §  111,  and  note  7. 

Can  principal  when  sued  by  third  party  set-off  a  debt  due  his 
agent?  —  Where  a  principal  in  such  a  case  is  sued,  he  of  course 
would  not  be  permitted  to  set-off  a  debt  due  by  that  third  party 
to  his  agent,  whom  he  had  clothed  with  such  apparent  posses- 
sion, for  the  very  essence  of  set-off,  mutuality,  is  wanting; 
Waterman  on  Set-off,  §  52;  Carman  v.  Garrison,  13  Pa.  St.  158. 
But  where  a  debt  was  really  due  to  him,  although  nominally 
due  his  agent,  he  would  undoubtedly  have  the  right  to  set  it 
off.     See  Talcott  v.  Smith,  142  Mass.  542. 

Principal  cannot  set-off  debt  of  broker  to  him.  ■ —  Lastly,  a 
principal  is  not  permitted  to  set-off  a  debt  due  to  him  from  his 
own  broker,  against  the  demand  of  one  with  whom  he  has  con- 
tracted for  the  purchase  of  goods  through  the  medium  of  the 
broker;  Waterman  on  Set-off,  p.  328;  Dunn  v.  Wright,  51 
Barb.  244. 


SMITH  r.  HODSON. 


[REP0KTKI>   4    1.    1!.    211.] 

If  a  bankrupt  on  the  eve  of  hix  Ininkruptcy  fraudulently  deliver 
<joods  to  one  of  his  creditors,  the  assii/nees  may  disaffirm  the  con- 
tract, and  recover  the  value  of  the  yoods,  in  trover  ;  but  if  they 
briny  iissumpsit,  they  affirm  the  contract,  and  then  the  creditor 
may  set  off  his  debt. 

Where  the  defendant  lent  hix  acceptance  to  the  bankrupts  on  a  bill 
which  did  not  become  due  till  after  the  act  of  bankruptcy,  and 
ivas  then  outstandiny  in  the  hands  of  third  persons,  yet  the 
defendant  haviny  paid  the  amount  after  the  commission  issued, 
and  before  the  action  brouyht  by  the  assiynees,  is  entitled  to  a 
set-off. 

Assumpsit  for  goods  sold  and  delivered  to  the  defendant 
by  the  bankrupts,  before,  and  also  by  the  assignees  since,  the 
bankrui)tcy.  Pleas  7i07i  assumpsit,  and  a  tender  of  131?.  7s.  6d., 
which  the  plaintiffs  took  out  of  court.  There  was  also  a  set-off. 
At  the  trial  at  Guildhall  before  Lord  Kenyan,  a  verdict  was 
found  for  the  plaintiffs,  subject  to  the  opinion  of  this  court  on 
the  following  case  :  — 

In  August,  1787,  Lewis  and  Potter  sold  goods  to  the  defend- 
ant to  the  amount  of  421.,  and  on  the  4th  of  March,  1788,  they 
drew  a  bill  on  him  at  two  months,  for  442/.,  payable  to  their 
own  order,  although  at  that  time  he  was  indebted  to  them  in 
42Z.  only;  which  bill  the  defendant  accepted.  Lewis  and 
Potter  made  the  following  entry  in  their  books :  "  4th  of 
March,  1788,  received  from  James  Hodson  an  acceptance,  due 
7th  of  May,  442/.  to  bills  and  notes  ;  to  provide  400/."    On  26th 

1372 


SMITH    V.    HODSON.  '  1373 

April  several  bills  were  refused  payment,  by  Lewis  and  Potter, 
some  of  Avhich  were  presented  by  bankers  on  behalf  of  the  in- 
dorsees. On  the  28th  April,  1788,  the  defendant  went  to  the 
house  of  Lewis  and  Potter,  and  bought  goods  to  the  amount  of 
531?.  7.S-.  Gf?.,  which  were  sent  to  him  with  a  bill  of  parcels  the 
same  day ;  the  goods  were  sold  to  the  defendant  at  six  months' 
credit.  On  the  29th  of  April,  1788,  Lewis  and  Potter  com- 
mitted acts  of  bankruptcy.  On  the  9th  of  May  the  commission 
issued,  and  they  were  duly  declared  bankrupts,  and  the  plain- 
tiffs chosen  assignees  of  their  estate  and  effects.  The  bill  for 
442?.  drawn  by  the  bankrupts,  and  accepted  by  the  defendant, 
became  due  the  7th  of  May,  1788 ;  the  defendant  did  not  pay  it 
on  that  day,  but  in  September  following  paid  to  Gibson  and 
Johnson,  the  holders  thereof,  200?.  on  account  of  the  bill ;  and 
in  October  following,  before  the  six  months'  credit  upon  the 
goods  was  expired,  he  paid  the  residue  with  interest.  The  jury 
thought  the  bankrupts  gave  an  undue  preference  to  the  de- 
fendant in  the  sale :  and  gave  a  verdict  for  the  plaintiffs,  dam- 
ages 400?.  (a).  The  questions  for  the  opinion  of  the  court  are, 
1st,  Whether  the  plaintiffs  can  support  this  action  for  the  price 
of  the  goods  ?  2ndly,  If  they  can  support  this  action,  whether 
the  defendant  cannot  set  off  against  it  the  money  paid  by  him 
on  the  above-mentioned  bill  of  442?. 

RiimelU  for  the  plaintiffs,  was  desired  by  the  court  to  confine 
himself  to  the  second  point,  as  they  entertained  no  doubt  upon 
the  first.  As  to  which  he  contended  that  though  the  sale  were 
good  to  charge  the  defendant  in  this  action,  yet  he  \vas  not  en- 
titled to  support  his  set-off  under  the  5  Geo.  2,  c.  30,  s.  28  (V). 
The  words  wdiich  will  be  relied  on  are  mutual  credit :  but  they 

(a)  A  fraudulent  preference  may  son,  or  mutual  debts  between  the 
be  bj' way  of  saZe.  See  Coo^•  v.  Calde-  bankrupt  and  any  other  person,  at 
cott,  1  M.  &  M.  522;  Ward  v.  Clark,  anytime  befoi'e  such  person  became 
ih.  499;  Bevas  v.  Venables,  3  Bing.  bankrupt,  the  commissioners,  &c., 
N.  C.  400;  Cash  v.  Young,  2  B.  &  C.  shall  state  the  account  between  them, 
413.  But  in  Lee  v.  Hai-t  [10  Exch.  and  one  debt  may  be  set  against  an- 
555,  11  Exch.  880],  where  the  sale  other;  and  what  shall  appear  to  be 
Avas  real  and  to  a  person  not  a  credi-  due  on  either  side,  on  the  balance  of 
tor,  though  at  a  gross  undervalue  such  account,  and  on  setting  such 
and  by  an  insolvent  trader,  the  court  debts  against  one  another,  and  no 
doubted  whether  it  could  be  deemed  more,  shall  be  claimed  or  paid  on 
an  act  of  bankruptcy.  either  side  respectively."     [The  cor- 

(b)  Which  enacted,  that  wlicre  responding  enactment  in  the  46  &  47 
"  there  hath  been  mutual  credit  given      Vict:  c.  52,  is  contained  in  s.  38.] 

by  the  bankrupt  and  any  other  per- 


1374  SMITH    V.    IIODSON. 

were  by  no  means  intended  to  he  use<l  in  so  extensive  a  sense 
as  the  one  now  jmt  on  tlicni  l)y  the  (U'tt'iidaiit.  The  fjiviii^  of 
credit  is  merel}'  giving  a  future  day  of  payment  for  a  pre-exist- 
ing debt;  and  to  entitle  a  defendant  to  set  it  off,  it  must  exist 
previous  to  the  act  of  bankruptcy.  As,  where  goods  are  sokl 
to  be  i)aid  for  at  a  future  day,  the  vendee  becomes  a  debtor  for 
the  vahie  upon  the  delivery,  though  payment  cannot  Ikj  exacted 
from  him  till  the  day  arrives ;  in  the  meantime  tlie  vendor  is 
his  creditor  to  that  amount;  and  in  that  sense  only  is  the  word 
credit  to  be  understood  in  the  act.  This  appears  furllicr  from 
the  subsequent  words  of  the  statute,  for  the  commissioners  an* 
directed  to  state  the  account  between  the  })arties  an<l  claim  or 
pay  only  so  much  as  shall  a])[)ear  due  on  the  Jxilam-e  of  xuch  ac- 
count. In  order,  therefore,  for  the  party  to  set  off  any  dfinand, 
it  must  be  such  as  may  be  made  an  item  in  the  account,  and 
either  certain  or  reducil^le  to  a  certainty  at  the  time  of  the  act 
of  bankruptcy  committed.  The  act  itself  says,  that  the  balance 
of  the  account  is  to  be  made  appear,  "on  setting  ftuch  dehts 
against  one  another;"  which  plainly  shows  that  nothing  more 
was  meant  by  the  word  credits  than  such  debts  as  were  payable 
at  a  future  day.  Then  how  does  the  statute  apply  to  this  case  ? 
There  was  no  debt  existing  between  the  bankrupts  and  the  de- 
fendant at  the  time  of  the  bankruptcy  ;  nor  was  it  certain  there 
ever  would  be  one :  for,  in  case  of  the  defendant's  bankruptcy 
or  refusal  to  pay,  the  holder  might  have  i)roceedcd  against 
the  estate  of  the  drawers,  and  recovered  the  amount ;  and  tliat, 
perhaps,  after  the  defendant's  acceptance  had  been  admitted  as 
an  item  of  account  between  him  and  the  bankrupts ;  and,  at  all 
events,  no  debt  could  arise  till  after  payment  by  the  defendant, 
which  was  long  after  the  bankruptcy,  and  therefore  could  not  be 
set  off ;  for  at  the  time  the  bill  was  outstanding  in  the  hands  of 
third  persons,  and  was  therefore  the  subject  of  mutual  credit,  if 
at  all,  between  them  and  the  bankrupts.  But  in  Groome's  Case 
(a).  Lord  Hardwicke  was  clearly  of  opinion  that  a  debt  arising 
on  a  contingency  after  the  bankruptcy  could  not  be  set  off ; 
and  it  has  been  determined,  that  though  a  note  indorsed  after 
an  act  of  bankruptcy  may  be  proved  under  a  commission 
against  the  drawer  (5),  yet  it  cannot  be  set  off  against  an  ac- 
tion by  his  assignees  (c).     The  cases  Ex  jjarte  Beeze  (c/),  and 

(a)  1  Atk.  119.  vide  tamen  6  G.  4,  c.  IG,  s.  50,  and  3 

(6)  Ex  parte  Thomas,  1  Atk.  73.  M.  &  W.  30. 

(c)  Marsh  v.  Chambers,  2  Str.  1284 ;  (cl)  1  Atk.  228. 


SMITH    V.    HODSON.  1375 

JEx  parte  French  (a),  assignee  of  Cox  v.  Fenn  (5),  were  all  of 
them  cases  where  the  bankrupts  were  actually  indebted  to  the 
defendants  before  the  bankruptcies,  in  the  sums  which  they 
set  off  against  the  demands  of  the  assignees ;  which  differs  them 
materially  from  the  present ;  but  even  supposing  this  were 
such  a  demand  as  could  in  a  fair  transaction  be  set  off  in  a 
court  of  law  under  the  statute,  yet  it  cannot  avail  the  defend- 
ant in  this  case,  where  the  whole  is  vitiated  by  fraud.  It  there- 
fore becomes  material  to  examine  what  part  of  the  transaction 
may  be  substantiated,  and  what  is  void.  There  is  no  fraud  in 
the  mere  act  of  sale  ;  and  the  defendant  must  be  bound  by  that 
so  far  as  he  made  himself  liable  for  the  amount  of  the  goods ; 
that  would  have  been  the  case  had  the  sale  been  made  to  a  per- 
son who  was  no  creditor  of  the  bankrupts ;  but  the  objection 
arises  to  the  fraudulent  use  now  attempted  to  be  made  of  the 
sale.  No  party  is  entitled  to  set  off  a  demand  against  the 
assignees  of  a  bankrupt,  for  which  he  could  not  have  main- 
tained an  action,  or  which  he  could  not  have  proved  under  a 
commission.  Now,  if  the  defendant  could  not  have  done  either 
in  the  present  instance  before  the  bankruptcy,  he  shall  not  be 
permitted  to  recover  the  amount  indirectly  in  this  manner ;  for 
that  would  be  to  permit  him  to  avail  himself  of  his  own  fraud. 
Grihbs,  for  the  defendant,  insisted  first,  That  if  the  whole 
were  to  be  considered  as  a  bond  fide  transaction,  the  defendant 
was  entitled  to  set  off  the  sum  paid  under  his  acceptance  ;  and 
2ndly,  That  the  finding  of  the  jury,  as  to  the  undue  preference, 
could  not  vary  the  case  in  favour  of  the  plaintiffs  in  this  action. 
The  first  question  depends  on  the  stat.  5  Geo.  2,  c.  30,  s.  28 ; 
the  true  construction  of  which  is,  that  wherever  there  is  mutual 
credit  between  the  bankrupt  and  another  person  before  the 
bankruptcy,  the  debts  may  be  set  off  against  each  other, 
although  one  of  them  may  accrue  after  the  bankruptcy,  and 
although  that  one  debt  could  not  form  an  item  of  an  account, 
so  as  to  enable  the  bankrupt  and  such  other  person  to  strike  a 
balance.  The  plaintiff's  argument,  That  nothing  can  be  set  off 
under  the  statute,  but  that  which  may  form  an  item  of  an  ac- 
count at  the  time  of  the  bankruptcy,  and  the  payment  of  which 
is  only  postponed  for  a  time,  directly  militates  against  the  de- 
cision of  French  v.  Fenn.  If  that  case  be  law,  the  construction 
now  attempted  to  be  put  on  this  statute  by  the  plaintiff's  coun- 

(a)  lb.  230.  (,h)  Tr.  23  Geo.  3,  Co.  Bk.  L.  2nd  ed. 


1370  SMITH    V.    HODSON. 

sel  cannot  pri'viiil.  In  tliat  case  Fenii  owed  nothing  to  Cox 
previous  to  the  bankruptcy;  so  here  Lewis  and  l^otter  owed 
Hodson  nothing  previous  to  their  bankruptcy  ;  but  Fenn  had 
been  intrusted  by  Cox  with  that  upon  which  he  probably  would 
become  his  debtor,  namely,  the  sale  of  the  jewels,  in  which  Cox 
was  interested  one-third  part ;  so  Lewis  and  Potter  had  been 
intrusted  by  Hodson  with  that  upon  which  they  probably  would 
become  his  debtors,  sc.  with  his  acceptance  for  442/.,  he  liaving 
effects  to  the  amount  of  42/.  only  ;  there  Fenn,  upon  the  credit 
of  the  jewels  intrusted  to  him,  trusted  Cox  on  another  account ; 
so  here  Lewis  and  Potter,  on  credit  of  the  acceptance  intrusted 
to  them,  trusted  Hodson  on  another  account,  namely,  for  the 
goods  in  question  ;  there,  after  the  bankruptcy  of  Cox,  Fenn 
received  a  sum  of  money  upon  the  sale  of  the  jewels  intrusted 
to  him,  which  became  due  to  Cox's  estate ;  so  here,  after  the 
bankruptcy,  Hodson  paid  a  sum  of  money  upon  the  acceptances 
intrusted  to  them,  for  which  he  has  a  claim  upon  their  estate. 
In  that  case  the  court  allowed  the  set-off,  and  yet  at  the  time 
of  Cox's  bankruptcy,  no  balance  could  have  been  struck  be- 
tween the  paities,  because  the  defendant's  claim  arose  from  the 
produce  of  the  pearls  afterwards.  What  that  proiluce  would  be, 
could  not  be  known  at  the  tinu;  of  the  bankruptcy,  and  conse- 
quently could  not  then  form  an  item  in  an  account  l)ctween  the 
parties.  Secondly,  The  finding  of  the  jury,  as  to  the  undue 
preference,  is  either  nugatory  as  to  the  plaintiffs,  or  it  operates 
as  a  ground  of  nonsuit.  The  plaintiffs  have  an  option  either  to 
affirm  or  disaffirm  the  contract :  if  the  former,  the  defendant  is 
entitled  to  set  off  his  demand  ;  if  the  latter,  though  the  plain- 
tiffs might  recover  in  trover,  they  cannot  maintain  this  action. 
The  jury  found  that  there  was  a  fraud  in  the  sale  ;  the  plaintiffs 
cannot  therefore  contend  that  the  fraud  is  confined  to  the  use 
made  of  the  sale.  If  the  defendant  had  obtained  his  defence 
by  fraud,  it  would  not  have  availed;  but  it  does  not  follow  tliat, 
because  there  was  a  fraud  in  the  sale  of  goods  from  the  l^ank- 
rupt  to  the  defendant,  the  latter  shall  not  set  off  a  cross  demand 
against  the  price  of  the  goods.  The  fraud  (if  any)  was  in  the 
sale  of  the  goods ;  and  the  effect  which  it  has  is  this  (a),  viz. 
that  the  bankrupt  conve3'ed  no  property  in  the  goods  to  the 
defendant,  and  that  it  was  a  naked  delivery ;  if  so,  the  plaintiffs 
should  bring  trover,  not  assumpsit. 

(a)    Cooke,  B.  L.  2nd  ed. 


SMITH   V.    HODSON.  1377 

Russell  in  reply.  —  With  respect  to  the  case  of  French  v. 
Fenn^  which  seems  to  have  been  principally  relied  on  by  the 
other  side,  there  are  two  very  material  distinctions  between  that 
and  the  present  case ;  there  did  exist  mutual  debts  between  the 
parties  in  that  case,  though  the  precise  amount  was  not  actually 
ascertained  at  the  time  of  the  bankruptcy,  but  still  it  was  capa- 
ble of  being  reduced  to  a  certainty  at  any  time  by  the  sale  of 
the  jewels ;  and  if  Fenn  had  become  a  bankrupt  instead  of  Cox, 
it  cannot  be  denied  but  that  Cox  might  have  come  in  under 
Fenn's  commission  for  a  third  of  the  value  of  those  jewels. 
Again :  In  that  case  the  jewels  were  in  the  hands  of  the  party 
between  whom  and  the  bankrupt  the  account  Avas  to  be  settled, 
and  the  mutual  debts  and  credits  allowed;  whereas  here  the 
acceptance  was  in  the  hands  of  third  persons  at  the  time  of 
the  bankruptcy,  without  any  certainty  that  it  would  ever  be  dis- 
charged by  the  defendant. 

Our  adv.  vult. 

Lord  Kenyon,  C.  J.,  now  delivered  the  opinion  of  the  court. 
His  lordship,  after  stating  the  facts,  said,  We  have  considered 
this  case,  and  are  of  opinion  that  the  defendant  has  made  a 
sufficient  defence  against  the  action  in  its  present  form,  and 
consequently  that  a  judgment  of  nonsuit  must  be  entered.  It 
is  expressly  stated  in  the  case  that  the  goods  in  question  were 
delivered  by  the  bankrupts  to  the  defendant  with  a  view  to 
defraud  the  rest  of  the  creditors  ;  and  therefore  an  action  might 
have  been  framed  to  disaffirm  the  contract,  wliich  was  thus 
tinctured  with  fraud ;  for,  if  the  assignees  had  brought  an  ac- 
tion of  trover,  they  might  have  recovered  the  value  of  the  goods. 
The  statute  5  Geo.  2,  c.  30,  s.  28,  enacts,  that  where  it  shall 
appear  to  the  commissioners  that  there  hath  been  mutual  credit 
between  the  bankrupt  and  any  other  person,  or  mutual  debts 
between  the  bankrupt  and  any  other  person,  before  the  bank- 
ruptcy, the  commissioners  or  the  assignees  shall  state  the  ac- 
count between  them,  and  one  debt  may  be  set  against  another ; 
and  the  balance  only  of  such  accounts  shall  be  claimed  and 
paid  on  either  side,  in  the  most  extensive  words ;  and  therefore 
we  are  perfectly  satisfied  with  the  cases  Ex  parte  Deeze  (a), 
and  French  v.  Fenn;  but,  if  an  action  of  trover  had  been 
brought   instead  of  assumpsit,  this  case  would   have  differed 

(a)    1  Atk.  228. 


1378  SMITH    V.    IIODSUN. 

materially  from  those  two ;  because  in  both  those  cases  the 
goods  had  got  into  the  hands  of  tlie  respective  parties  prior  to 
the  bankrui)tcy,  and  without  any  view  of  dt'fran<lint,r  the  rest  of 
the  creditors  ;  and,  therefore,  according  to  the  justice  of  those 
cases,  whetlier  trover  or  assumpsit  had  been  l)rought,  the  wliole 
account  ought  to  havi-  been  settled  in  the  way  in  which  it  was, 
because  the  situation  of  the  parties  was  not  altered  with  a  view 
to  the  bankruptcy:  but  here  it  was;  and  if  trover  had  l>een 
brought,  the  defendant  would  have  had  no  defence;  and  those 
cases  would  not  have  availed  him.  lUit  this  is  an  action  on  the 
contract,  for  the  goods  sold  by  the  bankrupt;  and  altliough  the 
assignees  may  either  aflirni  or  disiilHrni  the  contract  of  the  bank- 
rupt, yet  if  they  do  aflirm  it,  tliey  nnist  act  consistently  through- 
out:  they  cannot,  as  lias  often  been  observed  in  eases  of  this 
kind,  Itlow  hot  and  eold  ;  and  as  the  assignees  in  this  ease 
treated  this  transaction  as  a  contract  of  sale,  it  must  be  pursued 
througli  all  its  consequences,  one  of  which  is,  that  the  party 
buying  may  set  up  the  same  defence  to  an  action  brouglit  by 
the  assignees,  which  he  might  have  used  against  the  bankrupt 
himself;  and  consequently  may  set  off  another  debt  which  was 
owing  from  the  bankrui)t  to  him.  This  doctrine  is  fully  recog- 
nized in  Hltchin  v.  Campbell  (rt),  and  iit  King  v.  Leith  (h). 
Now  here  the  assignees,  by  bringing  this  action  on  the  contract, 
recognized  the  act  of  the  bankrupt,  and  must  be  l)Ound  l)y  the 
transaction  in  the  same  manner  as  the  bankrupt  himself  would 
have  been  :  and  if  lie  had  brouglit  the  action,  the  whole  account 
must  have  been  settled,  and  the  defendant  would  have  had  a 
right  to  set  off  the  amount  of  the  bill.  Therefore,  on  the  dis- 
tinction between  the  actions  of  trover  and  assumi)sit,  we  are  all 
of  opinion  that  a  judgment  of  nonsuit  must  be  entered. 

Judgment  of  nonsuit  (c). 


This  case  is  one  of  frequent  reference  upon  the  subject  of  mntunl  credit ; 
but  as  the  leadiug  case  upon  that  branch  of  law  is  unquestiona))!}'  Rose  v. 
Hart,  it  seems  best  to  append  any  remarks  on  the  doctrines  of  mutual  credit 
and  set-oft'  to  that  decision. 

The  important  principle  which  Smith  v.  Hodson  is  here  inserted  as  estab- 
lishing, is,  that  a  man  who  has  his  option  whether  he  will  affirm  a  particular  act 

(a)  2  Bl.  Rep.  827.  378;    Smith    \.    Gale,   ib.    364;    and 

(6)  2  T.  R.  114.  Hnlme   v.  Mugglestone,  3   M.   &   W. 

(c)  See  Atkinson  v.  Elliott,  7  T.  R.      30. 


SMITH   V.    HODSOX.  1379 

or  contract,  must  elect  either  to  affirm  or  disaffirm  it  altogether ;  he  cannot  adopt 
that  part  ichich  is  for  his  own  benefit,  and  reject  the  rest.  "  He  cannot,"  to  use 
Lord  Kenyon's  expression,  "  blow  hot  and  cold." 

This  principle,  as  his  lordship  in  the  text  observes,  is  older  than  the  case 
of  Smith  V.  Hodson.  In  Wilson  v.  Foulter,  2  Str.  859,  an  agent  had  been 
secretly  employed  on  behalf  of  a  bankrupt  after  his  bankruptcy,  to  lay  out 
money  upon  India  bonds.  The  assignee,  upon  discovering  the  fact,  seized 
some  of  the  bonds  in  the  agent's  hands,  and  accepted  them  as  part  of  the 
estate,  and  then  brought  an  action  against  him  for  the  money  with  which  the 
other  bonds  were  purchased.  The  court  was  of  opinion  that  the  acceptance 
of  part  of  the  bonds  was  an  affii'mauce  of  the  agent's  act,  and  that  the 
assignees  could  not  affirm  one  part,  and  disaffirm  another.  In  BiUon  v.  Hyde, 
1  Atk.  128,  a  bankrupt  had,  in  the  course  of  dealing,  after  the  bankruptcy, 
paitl  3000Z.  to  petitioner,  and  petitioner  had  in  the  same  dealing  paid  the 
bankrupt  712L  Lord  Hardwicke  decreed  that  the  assignees,  having  adopted 
the  bankrupt  as  their  factor,  must  take  him  as  such,  for  every  purpose;  and 
he  decreed  that  the  712Z.  should  be  allowed. 

The  doctrine  laid  down  in  the  text  has  been  frequently  acted  on  since  the 
decision  of  Smith  v.  Hodson.  It  will  be  found  laid  down  by  Lord  Ellen- 
borough  in  Hovil  v.  Pack,  7  East,  164;  and  by  Lord  Tenterden,  in  Ferguson 
V.  Carrington,  9  B.  &  C.  59;  and  see  Selway  v.  Fogg,  5  M.  &  W.  83;  Biissell 
V.  Bell,  8  M.  &  W.  277 ;  and  10  M.  &  W.  350. 

So  if  a  party,  with  knowledge  of  fraud  in  a  contract,  which  would  enable 
him  to  avoid  it,  treat  it  as  a  subsisting  contract,  he  cannot  afterwards  repu- 
diate it.  See  Campbell  v.  Fleming,  1  A.  &  E.  40 ;  and  generally  if  a  party 
having  the  right  to  repudiate  or  affirm  a  transaction,  take  the  latter  course, 
he  cannot  afterwards  recur  to  his  right  of  repudiation.  See  Richardson  v. 
i?HK»,  2  Q.  B.  218 ;  .Jordan  v.  Norton,  4  M.  &  W.  155. 

On  the  same  principle  proceeded  the  decision  in  Birch  v.  Wright,  1  T.  R. 
378,  cited  ante,  vol.  i.,  in  the  notes  to  Keech  v.  Hall,  and  which  establishes 
that  a  man  cannot  at  once  be  treated  both  as  a  tenant  and  a  trespasser.  That 
was  an  action  for  use  and  occupation,  brought  against  the  defendant,  who, 
on  the  18th  Julj',  1777,  was  tenant  of  certain  lands  to  Bowes,  at  223Z.  10s. 
per  annum,  payable  on  the  12th  of  May  and  22nd  of  November.  Bowes  had, 
on  the  17th  of  July,  1777,  conveyed  the  reversion  by  way  of  security  to  the 
plaintifl"  and  Goostrey,  Avho  was  since  dead,  and  they  had  brought  an  eject- 
ment for  the  lands  against  the  defendant,  and  obtained  judgment,  laying  their 
demise  on  the  6th  April,  1785,  and  in  September,  1785,  had  obtained  posses- 
sion. All  rent  had  been  paid  up  to  the  22nd  November,  1784,  except  the  sum 
of  81/.  15s.  Under  these  circumstances,  the  court  held  that  the  plaintiff  was 
entitled  to  the  unpaid  rent,  up  to  the  day  of  the  demise  laid  in  the  ejectment, 
viz.,  6th  April,  1785;  but  not  to  any  rent  for  the  time  wliich  had  elapsed 
since.  "The  plaintiff,"  said  Duller,  J.,  "  has  not  waived  the  tort.  He  has 
brought  his  ejectment,  and  obtained  judgment  on  it,  which  is  insisting  on  the 
tort,  and  he  cannot  be  permitted  to  blow  both  hot  and  cold  at  the  same  time. 
The  action  for  use  and  occupation,  and  the  ejectment,  when  applied  to  the 
same  time,  are  totally  inconsistent;  for  in  one  the  plaintiff  says  the  defend- 
ant is  his  tenant,  and  therefore  he  must  pay  him  rent;  in  the  other,  he  says, 
he  is  no  longer  his  tenant,  and  therefore  he  must  deliver  up  the  possession. 
He  cannot  do  both.  The  plaiutifl''s  counsel  admit  that  an  action  would  lie  for 
the  mesne  profits;  it  is  of  course  after  ejectment,  and  may  be  maintained 
without  proving  any  title.     The  ejectment  is  the  suit  in  which  the  defendant 


1380  SMITH    V.    lloDSnN. 

is  considered  as  a  trespasser ;  aiul  unless  tlie  jinlfrmont  in  ejectment  be  laid 
out  f)f  tlie  case,  tlie  tort  is  not  waiveil.  The  ilifLMniniii  slanils  convicted  on 
record  by  judiruient  as  a  trespasser  from  tiie  «;tii  April,  17H5." 

[For  tlie  like  reason  in  a  recent  case  wliere  tlie  owner  of  the  soil  of  a  navi- 
{jablc  lake  over  wliicli  there  was  a  public  highway  had  taken  to  a  pier  wnjuy- 
fuUy  ere<-ted  upon  his  land,  it  was  held  that  lie  could  not  maintain  an  action 
against  the  owner  of  steamboats  for  causing  persons  to  pass  over  tlie  pier 
for  the  purpose  of  navigating  the  lake,  MarsUall  v.  i'Ueswnter  Steam  \av. 
Co.,  L.  R.  7  y.  B.  KIC] 

It  seems  extraordinary  that  the  principal  case  of  Smith  v.  Iloihon,  should 
not  have  been  mentioned  in  the  argument  of  Burhanan  v.  Findldij,  l)  B.  &  C. 
TM<.  It  is  true  that  it  is  distinguishul)le  from  that  case;  but  the  distinction 
was  not  then  established,  as  it  has  l)een  since,  by  Thorpe  v.  '/'horpr,  :\  B.  & 
Ad.  ")«:$.  In  Bnrhunan  v.  FiiuUiiij,  the  assignees  of  certain  bankrupts  sued 
the  defendants  for  money  had  and  receiv<'d  by  the  defendants  to  the  use  of 
the  bankrupts  before,  and  of  the  assignees  after,  the  liaiikniptcy.  Tiie  bank- 
rupts, who  were  merchants  at  Liverpool,  had  remitted  a  l)ill  to  the  defend- 
ants, who  were  merchants  in  London,  with  directions  to  get  it  discounted, 
and  apply  the  proceeds  in  a  particidar  way.  The  defendants  did  not  get  it 
discounted,  but  received  tiie  money  when  it  became  due,  which  happened 
after  the  bankruptcy.  Before  the  bankruptcy,  the  l)anknipts  iiad  rccpusti-d 
to  have  the  l)ill  returned  to  them.  It  was  held  that  tlie  defendants  could 
not,  in  this  action  by  the  assignees,  set  oft*  a  debt  due  to  them  by  the  bank- 
rupts. 

This  case  was  fully  canvassed  and  explainetl  in  J'hnrjif  v.  Thorjir,  sitpra. 
In  that  case,  the  defendant  had  received  from  the  plaintiff  a  bill,  indorsed 
and  payable  to  the  plaintiff,  for  the  purpose  of  being  paid  to  W. ;  he  had  not 
paid  it  to  W.,  but  had  received  the  money  at  the  maturity  of  the  bill;  and 
the  (piestion  was.  whether,  in  an  action  for  that  money,  he  could  not  plead  a 
set-otr.  The  court  held  that  he  might.  "  If,"  said  I'arke,  J.,  '•  the  i)laintiff 
hail  chosen,  instead  of  assumpsit  for  money  had  and  received,  to  bring  a 
special  action  for  the  breach  of  duty,  there  could  have  been  no  set-fill",  lie- 
cause  it  would  have  been  an  action  for  unliquidated  ilania-^es."  [See  now, 
however,  the  Judicature  Act,  1873,  3G  &  37  Vict.  c.  GC,  Order  XIX.,  Rule  3.] 
"  But,  by  bringing  assumpsit  for  money  had  and  received,  he  lets  in  the  con- 
sequences of  that  action,  one  of  which  is  the  right  of  set-off.  The  expres- 
sions of  the  court  in  Burhanan  v.  Findlay  must  be  taken  with  reference  to 
the  subject-matter.  In  that  case,  the  bills  remained  in  the  hands  of  the 
defendants,  unapplied  to  the  purpose  for  which  they  had  been  sent,  when 
the  parties  who  had  sent  them  countermanded  the  order  for  their  being  dis- 
counted, and  ref|uired  to  have  them  returned,  which  was  not  done.  It  was 
not  a  case  of  mutual  credit,  because  the  transaction,  on  the  part  of  the 
defendants,  was  against  good  faith.  The  assignees,  in  that  case,  did  not 
affirm  any  contract  by  bringing  an  action  for  money  had  and  received,  which 
merely  stood  in  the  place  of  an  action  of  trover." 

In  accordance  with  this  passage  is  the  observation  of  Patteson,  J.,  in 
Groom  v.  West,  8  A.  &  E.  772.  "  If,"  said  his  lordship,  "a  party  sends  an- 
other's bills  to  be  applied  to  a  specific  purpose,  the  receiver  cannot,  by  apply- 
ing them  to  his  own  needs,  alter  that  purpose,  and  make  the  trust  a  debt. 
This  appears  from  Buchanan  v.  Findlay,  and  other  cases."  Russell  v.  Bell, 
10  M.  &  W.  340. 

In  the  case  of  Hill  v.  Smith,  12  M.  &  W.  618,  the  same  principle  was 


SMITH    V.    HODSON.  1381 

applied,  where  a  sum  of  money  was  paid  by  K.  to  a  banking  company  for  the 
purpose  of  providing  foi»  particular  bills.  K.  being  then  indebted  to  the 
company  in  a  larger  amount,  they  placed  the  sum  to  the  credit  of  his  account 
with  them,  instead  of  following  his  instructions  as  to  its  application.  The 
bills  were  refused  acceptance,  and  while  they  remained  unpaid  in  the  hands 
of  the  holder,  K.  became  bankrupt :  it  was  held  that  his  assignees  might 
recover  the  whole  amount  in  a  special  action  of  assumpsit  against  the  com- 
pany. "  It  was  well  argued,"  said  Baron  Parke  in  delivering  the  judgment 
of  the  court,  "  by  Mr.  Cowling,  that  if  a  bill  of  exchange  had  been  delivered 
to  the  defendants  to  be  handed  over,  and  they  had  converted  it  to  their  own 
use,  the  assignees  might  have  brought  an  action  of  trover,  and  recovered  the 
full  value  of  the  bill  at  the  time  of  the  conversion ;  and  that  it  made  no  real 
difference  that  money,  not  a  bill,  was  misapplied."  See  also  Alder  v.  Keirjhley, 
15  M.  &  W.  117;   Colson  v.  Welch,  1  Esp.  379 ;  and  Bell  v.  Carey,  8  C.  B.  887. 

Brewer  v.  Sparrow,  7  B.  &  C.  310,  and  Bxirn  v.  Morris,  4  Tyrwh.  486,  are 
also  two  cases  ejusdem  generis,  in  one  of  which  the  principle  laid  down  in 
Smith  V.  Hodson  was  held  applicable,  while  the  other  was  considered  distin- 
guishable. In  Brewer  v.  Sparrow,  7  B.  &  C.  310,  the  assignees  of  a  bankrupt 
brought  trover  for  chattels  of  the  bankrupt,  of  which  the  defendant  had 
taken  possession.  The  chattels  were  part  of  the  bankrupt's  stock  in  trade, 
which,  on  the  bankrupt's  absconding,  the  defendant  had  taken  possession  of, 
and  carried  on  the  trade.  He  had,  however,  rendered  to  the  assignees  a  fair 
account,  and  paid  over  the  balance.  "The  defendant,"  said  Bayley,  J.,  "in 
the  first  instance,  was  a  wrongdoer,  and  the  plaintiffs  might  have  treated  him 
as  such.  But  it  was  competent  to  them,  in  their  character  of  assignees, 
either  to  treat  him  as  a  wrongdoer,  and  disaffirm  his  acts,  or  to  affirm  his 
acts,  and  treat  him  as  their  agent;  and  if  they  have  once  affirmed  his  acts, 
and  treated  him  as  their  agent,  they  cannot  afterwards  treat  him  as  a  wrong- 
doer, nor  can  they  affirm  his  acts  in  part  and  avoid  them  as  to  the  rest.  By 
accepting  and  retaining  the  balance  Avithout  objection,  they  affirmed  his  acts, 
and  recognised  him  as  tlielr  agent,  and  having  so  done,  they  are  not  at  liberty 
to  treat  him  as  a  wrongdoer."     Judgment  for  defendant. 

The  above  case  was  relied  on  as  in  point,  but  held  distinguishable,  in  Burn 
V.  Morria,  4  Tyrwh.  486.  That  was  an  action  of  trover,  brought  for  a  20L 
bank-note,  lost  by  a  clerk  of  the  plaintiff,  found  by  a  woman  in  the  street, 
taken,  at  her  request,  by  the  defendant's  son  to  the  bank,  and  there  changed 
by  his  father's  directions,  and  the  proceeds,  minus  two  sovereigns,  given 
back  to  the  wonuin.  The  woman  was  afterwards  taken  before  the  Lord 
Mayor,  and  seven  sovereigns,  part  of  the  proceeds,  found  on  her,  and  given 
back  to  the  plaintiff.  After  a  verdict  for  13Z.,  it  was  moved,  in  pursuance  of 
leave,  to  enter  a  nonsuit,  upon  the  ground  that  the  receipt  of  the  II.  was  an 
affirmance  of  the  whole  transaction.  Brewer  v.  Sparro^c,  was  cited :  but  Lord 
Lyndhurst  said,  "In  that  case  the  whole  proceeds  of  the  sale  were  taken; 
that  is  an  adoption  of  the  act.  Here  the  receipt  of  the  11.  does  not  ratify  the 
act  of  the  parties,  but  only  goes  in  diminution  of  damages." 

[It  is  obvious  that  in  this  case,  to  have  construed  the  receipt  by  the  plain- 
tiff, of  that  portion  of  the  proceeds  of  the  note  which  could  be  followed,  as 
an  adoption  of  the  previous  wrongful  acts,  would  have  been  to  give  to  the 
transaction  a  meaning  which  it  did  not  really  bear ;  the  receipt,  however,  of 
a  portion  only  of  the  proceeds  of  the  Avrongful  sale  of  goods  may  amount 
to  an  adoption  of  the  act  of  selling,  if  this  appears  to  have  been  the  intention 
of  the  parties;  see  Lythgoe  v.  Vernon,  5  H.  &  N.  180,  in  which  case  the  Court 


1382  SMITH    V.    HUDSON. 

of  Exchequer  hclil,  upon  deimirror,  that  the  owner  of  goods  who  had,  iifter 
a  tortious  sah',  cUiiiued  the  proceeds,  and  received  a  portion  of  thrm,  coulil 
not  afterwards  treat  tiie  seller  as  a  wronj^doer,  and  maintain  trover  against 
him.     In  tliis  case  Bninr  v.  Sparrow  was  cited,  l)Ut  not  Hum  v.  Mi)rrin.'\ 

But  where  the  purcliasers  of  goods  from  a  baniirupt,  after  notice  of  an  act 
of  banlvruptcy,  refused  to  pay  for  tliem  upon  a  ilemaud  made  by  tlie  as- 
signees, wlio  also  sent  to  theuj  an  invoice  of  tlie  goods;  it  was  lield,  the 
demand  made  by  the  assignees  not  liaving  been  complied  with,  that  their  acts 
did  not  allirm  the  sale,  and  that  they  might  recover  the  value  of  the  goods  in 
an  action  of  trover,  Valpij  v.  Zanders,  5  C.  B.  886.  See  also  AfurrLi  v.  Robin- 
son, :$  B.  &  C.  196. 

[The  subject  of  this  note  was  much  considered  in  tlie  recent  case  of  Smith 
V.  liahr,  L.  11.  8  C.  T.  :?r,0,  42  L.  J.  C.  P.  15r>,  where  Bovill,  C.  J.,  in  his 
judgment,  points  out  that  "  if  an  action  for  money  had  and  received  is 
brought,  that  is,  in  point  of  law,  a  conclusive  election  to  waive  the  tort;  and 
so  the  commencement  of  an  action  of  trespass  or  trover  is  a  conclusive  elec- 
tion the  other  way.  But  there  is  another  class  of  cases  in  wliich  an  act  is  of 
an  ambiguous  character,  and  may  or  may  not  be  done  with  the  intention  of 
adopting  and  alllrming  the  wrongful  act.  In  such  cases  the  (luestion  whether 
the  tort  has  been  waived  becomes  ratiier  a  matter  of  fact  than  of  law."  In 
that  case  it  was  held  that  the  l)ankru|>t's  trustee,  by  getting  a  fraudulent  bill 
of  sale  set  aside  by  the  Court  of  Bankruptcy  and  receiving  from  the  defend- 
ant the  proceeds  of  the  gooils  compriseil  in  it,  which  had  been  sold  by  the 
defendant,  had  precluded  inmself  from  suing  in  trover  for  tlie  goods.  The 
plaiiitiir's  i)roceedings  were  eitlier  ecpiivalent  to  an  action  for  money  had  and 
received,  or  amounted  in  fact  to  an  allirmance  of  the  wrongful  sale.] 

As  to  the  right  of  the  assignees  of  a  bankrupt  to  disulllrm  an  execution 
against  the  bankrupt's  goods  fraudulently  procured  by  himself ;  and  as  to  the 
efl'ect  of  such  disallirmance,  see  Stei-enson  v.  Xeirnham,  [13  C.  B.  285],  22 
L.  J.  C.  V.  1 10. 

In  PouM'll  v.  Rccs,  7  A.  &  E.  426,  Rees  had  before  his  deatii  tortiously  taken 
coal  from  laud  belonging  to  rowell,  Hughes,  and  Protliero  :  it  was  held  that, 
the  coal  having  been  sold  before  Hees'  death,  money  had  and  received  would 
lie  against  his  administrator  for  tlie  proceeds  of  the  coal  taken  more  than 
six  mouths  before  that  event,  and  trespass  for  the  coal  taken  afterwards, 
under  stat.  3  &  4  W.  4,  c.  42,  s.  2.  This  was,  however,  on  the  ground  that 
the  subject-matter  of  each  action  was  distinct.  The  "  intestate,"  said  Lord 
Denraan,  "  was  guilty  of  a  series  of  trespasses,  and  not  of  one  single  wrong- 
ful act.  The  plaintifl's,  therefore,  have  only  pursued  difierent  remedies  for 
ditt'eront  injuries." 

[So  where  in  ejectment  for  alternative  breaches,  viz.,  permitting  a  sale  by 
auction  upon  the  demised  premises  and  non-payment  of  rent  accruing  due 
subsequently,  the  defendant  paid  the  rent  due  into  court,  and  the  plaintiff 
took  it  out  in  satisfaction,  it  was  held  that  the  acceptance  of  the  rent  under 
such  circumstances  did  not  amount  to  a  waiver  by  the  plaiutifl*  of  his  right 
to  bring  ejectment  In  respect  of  the  alternative  breach,  Toleman  v.  Portbtiinf, 
L.  R.  7  Q.  B.  344,  41  L.  J.  Q.  B.  98,  and  see  the  notes  to  Dnmpor's  Case,  ante, 
vol.  i.,  as  to  waiver  of  forfeiture.] 

Where  the  defendants  had  wrongfully  taken  possession  of  the  money  of 
the  plaintift',  and  paid  the  amount  into  a  bank  in  their  joint  names,  it  was 
held  that  the  plaintiff  might  waive  the  trespass  and  recover  the  amount  as 
money  had  and  received,  Xeate  v.  Harding,  G  Exch.  349.     As  to  the  right  to 


SMITH    V.    HODSON.  1383 

waive  the  trespass  where  tliere  has  been  a  wrongful  entry  on  land,  and  to 
sue  for  use  and  occupation,  see  Turner  v.  Cameron's  Coalbrook  Steam  Coal 
Co.,  5  Exch.  932  [and  the  notes  to  Keech  v.  Hall,  ante,  vol.  i. 

Where  the  tort  is  not  waived,  but  an  action  is  brought  bj'  the  bankrupt's 
trustee  for  the  conversion  of  the  goods,  as  it  was  suggested  in  the  principal 
case  might  have  been  done,  there  must  be  an  avoidance  of  the  contract  by 
the  trustee,  and  therefore  a  demand  and  refusal  are  necessary  before  action 
brought.  But  this  is  not  so  where  the  tort  is  waived  and  an  action  brought 
for  the  proceeds  of  the  conversion,  Heilbut  v.  Nevill,  L.  R.  5  C.  P.  478,  39 
L.  J.  C.  P.  2-15.  That  the  bankrupt's  trustee  has  the  I'iglit  to  bring  such  an 
action,  see  Marks  v.  Feldman,  L.  R.  -i  Q.  B.  481,  38  L.  J.  Q.  B.  220.] 


If  a  party  has  the  option  to  affirm  or  disaffirm  a  particular 
act  or  contract,  he  must  either  affirm  or  disaffirm  it  altogether. 
Man}-  of  the  cases  result  from  insolvency  or  the  transactions  of 
principal  and  agent.  It  has  been  held  that  if  an  agent,  to  pay 
his  own  debt,  sells  his  principal's  property,  the  latter  cannot 
maintain  assumpsit  against  the  purchaser,  but  should  have 
brought  trover;  Whitlock  v.  Heard,  3  Rich.  88.  In  Bennett  v. 
Judson,  21  N.  Y.  238,  it  was  held  that  the  principal,  having  ac- 
cepted the  proceeds  of  the  sale  of  land,  was  liable  in  damages 
for  material  misrepresentations  of  the  agent ;  see  Stone  v. 
Denny,  4  Met.  151 ;  Stockwell  v.  U.  S.,  13  Wall.  531,  567.  And 
in  accordance  with  the  opening  proposition,  a  principal  in  en- 
forcing a  sale  made  by  his  agent,  cannot  allege  that  the  agent 
exceeded  his  instructions  in  warranting  the  property ;  see 
Chandelor  v.  Lopus,  note. 

An  important  feature  of  the  subject  is  the  effect  of  the  bring- 
ing of  a  suit  in  precluding  the  bringing  of  another  inconsistent 
with  it.  The  master  of  a  vessel  exceeded  his  authority  by  dis- 
posing of  the  cargo  to  pay  a  debt  already  due  from  the  owner 
to  the  vendee.  The  assignee  of  the  bill  of  ladino-  brought  an 
action  of  assumpsit  against  the  vendee  and  then  discontinued 
it  and  resorted  to  one  of  trover.  The  court  held  that  discon- 
tinuing before  trial  did  not  amount  to  ratification  ;  Peters  v. 
BalUstier,  3  Pick.  495,  505.  See  Butler  v.  Hildredth,  5  Met.  49, 
in  which  it  was  held  that  bringing  an  action  for  the  price  and 
securing  the  demand  by  an  attachment,  was  an  affirmation  of 
the  sale  and  the  waiver  of  the  right  to  disaffirm  it.  In  Xield 
V.  Burton,  49  Mich.  53,  it  was  held  that  bringing  assumpsit 
precluded  the  plaintiff  from  afterwards  maintaining  trover, 
although  the  court  had  no  jurisdiction  of  the  first  action ;  see 


1384  SMITH    V.    IIODSON. 

Heuimanii  v.  Van  l)uren,  44  Mich.  49G  ;  Thompson  v.  Howard, 
31  Id.  309.  "  The  principal  upon  being  informed  of  an  act  of  an 
agent  in  excess  of  his  authority,  lias  the  right  to  elect  whether 
he  will  adopt  the  unauthorized  act,  or  not,  and  so  long  as  the 
condition  of  the  parties  is  unchanged,  he  cannot  he  prevented 
from  such  adoi)tion  because  the  other  party  to  the  contract  may 
for  any  reason  prefer  to  treat  the  contract  as  invalid,  and  his 
election  once  made  is  irrevocable  ; "  Andrews  v.  The  ^Etna  Ins. 
Co.,  92  N.  Y.  59G,  (104  ;  85  Id.  334. 

"  The  defence  of  waiver  by  election  arises  where  the  remedies 
are  inconsistent ;  as  where  one  action  is  founded  on  an  alhrm- 
ance  and  the  other  upon  a  disallirmance  of  a  voidable  contract, 
or  sale  of  property.  In  such  cases  any  decisive  act  of  afhrm- 
ance  or  disallirmance,  if  done  with  knowledge  of  the  facts,  de- 
termines the  legal  rights  of  the  parties  once  for  all.  The  in- 
stitution of  a  suit  is  such  decisive  act;  and  if  its  maintenance 
necessarily  involves  an  election  to  allirm  or  tlisallirm  a  voidable 
contract  or  sale,  or  to  rescind  one,  it  is  generally  held  to  be  a 
conclusive  waiver  of  inconsistent  rights,  and  thus  to  defeat  any 
action  subsequently  brought  thereon."  Accordingly  a  bill  in 
equity  for  specific  performance  and  an  action  at  law  in  dam- 
ages for  breach,  are  l)oth  in  affirmance  of  the  contract  and  are 
not  inconsistent  remedies,  and  the  plaintiff  may  be  compelled 
to  elect;  Connihan  v.  Thompson,  111  Mass.  270;  see  Gardner 
V.  Lane,  98  Mass.  517  ;  Hooker  v.  Hubbard,  97  Id.  175 ;  Morris 
V.  Rexford,  18  N.  Y.  552;  Rodermund  v.  Clark,  46  Id.  354; 
Warren  v.  Spencer  Water  Co.,  143  Mass.  9,  15;  Eliot  i'.  McCor- 
mick,  144  Id.  10 ;  Bunch  v.  Grave,  111  Ind.  351,  357 ;  Lee  v. 
Templeton,  73  Ind.  315  ;  Browning  v.  Bancroft,  8  Met.  278. 
If  a  party  sues  on  a  promissory  note  and  obtains  a  verdict,  he 
cannot  in  another  suit  between  the  same  parties,  in  which  he  is 
defendant,  maintain  that  although  in  form  a  promissory  note 
the  transaction  was  in  effect  a  payment ;  Lilley  v.  Adams,  108 
Mass.  50 ;  see  Sears  v.  Carrier,  4  Allen  339.  Cases  in  which  it 
was  held  that  a  party  was  bound  by  his  election  are  Washburn 
V.  Great  Western  Ins.  Co.,  114  Mass.  175 ;  Steinbach  v.  Relief 
Ins.  Co.,  77  N.  Y.  498,  502  ;  Fields  v.  Bland,  81  N.  Y.  239 ;  Stod- 
dard V.  Cutcompt,  41  la.  329 ;  Thompson  v.  Howard,  31  Id.  309  ; 
Sloan  V.  Holcomb,  29  Id.  153.  It  has  been  held  that  one  who 
has  received  a  legacy  under  a  will  cannot  contest  the  validity 
of  the  will  without  restoring  the  legacy,  or  bringing  the  money 


SMITH    V.    HODSON.  1385 

into  court ;  Lee  v.  Templeton,  supra ;    Holt  v.  Rice,  64  N.  H. 
398  ;  20  Am.  Rep.  138  ;  see  State  v.  Adams,  71  Mo.  620. 

"  An    election   made    in    ignorance   of    material   facts  is,  of 
course,  not  binding,  when  no  other  person's  rights  have  been 
affected  thereby.     So  if  a  person,  though  knowing  the  facts, 
has  acted  in  misapprehension  of  his  legal  rights,  and  in  igno- 
rance of  his   obligation  to   make  an  election,  no  intention  to 
elect,  ,and  consequently  no  election,  is  to  be  presumed ; "  Wat- 
son V.  Watson,  128   Mass.  152,  155;   Anderson's  Appeal,  36 
Penn.  St.  176;  Wells  v.  Robinson,  13  Cal.  133;  see  Patterson 
V.  Gandasequi,  note.     A  joint  and  several  bond  or  promissory 
note  must  be  treated  as  one  or  the  other,  and  after  a  joint  judg- 
ment thereon  one  of  the  obligors  or  promisors  cannot  be  sued 
separately ;    United  States  v.  Price,  9  How.  83 ;  Beltzhoover  v. 
Commonwealth,  1  Watts  126 ;  Pickersgill  v.  Lahens,  15  Wall. 
110,  144;  contra.  United  States  v.  Cushman,  2  Sum.  436.     If 
the  landlord  has  the  option  to  treat  his  tenant  either  as  a  tres- 
passer or  as  being  rightly  in  possession  he  must  choose;  Mc- 
Kildoe  V.    Darracott,  13    Gratt.   278;    Stuyvesant  v.  Davis,  9 
Paige  427.      A  judgment  against  either  i^rincipal  or  agent  after 
the  former  is  disclosed  estops  from  suing  the  other;  Garrard 
V.  Moody,  48  Ga.  96 ;  Tuthill  v.  Wilson,  90  N.  Y.  423.     It  has 
been  held  that  the  mere  suing  both  without  judgment  is  not  an 
election  to  hold  the  principal  and  discharge  the  agent;  Matt- 
lage  V.  Poole,  15  Hun  556 ;  Fontaine  v.  Eagle  Man.  Co.,  52  Ga. 
31.      Privies  as  well  as  immediate  parties  are  bound  by  the 
estoppel  of  an  election ;  Fire  Ins.  Co.  v.  Cochran,  27  Ala.  228 ; 
Merrick's  Estate,  5  W.  &  S.  9;  Rawson  v.  Turner,  4  Johns. 
469 ;  Patterson  v.  Gandasequi,  note. 

Often  the  ground  taken  by  a  party  to  a  suit  deprives  the 
other  of  a  good  defence,  or  prevents  recovery  on  a  valid  cause 
of  action.  Such  party  cannot,  to  the  injury  of  his  opponent, 
shift  his  ground  in  a  subsequent  suit.  It  was  held  where  de- 
fendants procured  the  dismissal  of  a  cause  hi  one  court  upon 
the  ground  that  it  was  properly  pending  in  the  court  of 
another  county  to  which  it  had  been  transferred,  that  they 
were  estopped  to  deny  the  jurisdiction  of  the  court  of  the  other 
county;  Perkins  v.  Jones,  62  Iowa  345.  A  defendant  de- 
feated an  action  on  the  ground  that  a  third  person  should  have 
been  joined  with  the  plaintiff  as  a  partner ;  it  was  held  that  he 
.    could  not  deny  the  partnership  in  a  subsequent  suit  for  the 


1386  SMITH   V.  HUDSON. 

same  debt  by  both ;  Kelly  v.  Eieliman,  ;'>  Wharton  446;  3  Id. 
419;  see  Garrett  v.  Lyle,  27  Ala.  a8G ;  Variek  r.  Kdwanls,  11 
Paige  289;  Hayes  r.  Giidykunst,  11  Pemi.  St.  221;  Taylor  v. 
Parkhurst,  1  Id.  197;  Martin  v.  Ives,  17  S.  &  U.  304;  Queen 
V.  Sandwich,  l'>  C^.  H.  ')63,  o71  ;  Powell  r.  WashinL,^ton,  lo  Ala. 
803;  The  Hark  lldwin,  1  S|>rague  477:  W'cidon  r.  Lan«lreaux, 
2»i  La.  Anil.  72!>;  Smith  i\  McNeal,  68  IVnii.  St.  164;  Hank  v. 
Deiiiiis,  37  111.  381  ;  Vanleer's  Appeal,  24  Penn.  St.  224;  Dewey 
V.  Hell,  5  iMlen  Iti.");  Foster  v.  Hettsworth.  37  Iowa  41o;  Koon 
V.  Snodgrass,  iH  W.  \'a.  320;  McLeod  r.  .lohnson,  28  Miss. 
:571i  Potter  r.  Adams,  24  Mo.  109;  Railroad  Co.  v.  Hank,  102 
U.  S.  14;  Garber  v.  Doersom,  117  Penn.  St.  162.  Fiuther 
cases  whieh  hold  that  one  cannot  allirm  those  paits  ot  a  trans- 
action ill  his  hivor  and  disatlirm  the  rest  to  (he  injury  of 
others  are  Adlum  v.  Vanl,  1  Kawle  163;  Garnham  r.  Rogers, 
1  Dickens  63;  Pickett  v.  Hank,  32  Ark.  346;  Moller  v.  Tuska» 
87   N.   V.  If.t'i;   Loll.  V  r.  Hailcy,  4.")  M.l.  417. 

For  cases  which  hold  lliat  t'raudulciit  or  illegal  acts  may  be 
void  as  to  those  injured  thereby,  yet  binding  on  the  doer  and 
volunteers  under  him,  see  Seal  u.  Duffy,  4  Hair  274;  Carr  v. 
Acroman,  11  Ex.  oOti;  Wileocks  v.  Wain,  10  S.  vfc  R.  380;  Man- 
ufacturers' Hank  v.  Hank  of  Pennsylvania,  7  W.  &  S.  33');  Van- 
dyke V.  Christ,  7  Id.  373;  Kenneman  v.  Miller,  2  Md.  407; 
Loney  v.  Loney,  2  Carter  196;  Thomiison  v.  Dougherty,  12  S. 
&  R.'448;  Cushwa  v.  Cushwa,  5  Md.  44. 

The  rule  under  consideration  is  often  applied  in  the  case  of 
wills.  Wlicic  a  testator  gives  the  property  of  A.  to  H.,  and 
then  gives  A.  a  legacy,  the  rule  is  well  established  at  law,  as 
well  as  in  equity,  that  if  A.  elects  to  take  the  legacy,  he  shall 
not  set  up  any  right  or  claim  of  his  own  "which  shall  defeat  or 
in  any  way  prevent  the  full  effect  and  operation  of  every  part 
of  the  will  ;  "  Hyde  v.  Haldwin,  17  Pick.  303,  308  ;  Collins  v. 
Woods,  63  111.  285;  Noe  v.  Splivalo,  54  Cal.  207;  Wise  v. 
Rhodes,  84  Penn.  St.  402  ;  Smith  v.  Smith,  14  Gray  532 ;  Wat- 
son V.  Watson,  128  Mass.  152 ;  Brown  v.  Brown,  108  Mass.  386. 
The  principle  is  extended  to  a  widow's  dower  at  common  law  ; 
Savage  v.  Burnham,  17  N.  Y.  561,  571 ;  Lord  v.  Lord,  23  Conn. 
327 ;  Higginbotham  v.  Coonell,  8  Graft.  83 ;  Fulton  v.  Fulton, 
30  Miss.  586 ;  see  Sanford  v.  Sanford,  58  N.  Y.  69  ;  s.  c.  45  Id. 
723 ;  Asch  v.  Asch,  47  Hun  285  ;  Konvalinka  v.  Schlegel,  104 
N.  Y.  125  ;  Yorkly  v.  Stinson,  97  N.  C.  236 ;  Stockton  v.  Wooley, 


SMITH   Y.    HODSON.  1387 

20  Ohio  St.  184 ;  Thompson  v.  Hoop,  6  Id.  480 ;  Carder  v.  Fay- 
ette Co.,  16  Id.  353;  Stilley  v.  Folger,  14  Ohio  610;  see  Re 
Vowers,  45  Hun  418.  If  the  gift  is  subject  to  conditions 
and  the  donee  elects  to  take,  he  must  take  with  the  burdens 
attached;  Scholey  v.  Reed,  23  Wall.  331.  In  the  case  of  a 
devise  it  was  held  that,  as  the  widow  and  children  occupied  the 
lands  without  exercising  rights  adversely  to  each  other,  infer- 
ences could  not  be  drawn  which  should  operate  as  an  estoppel 
against  parties  subsequently  setting  up  legal  rights  to  the  lands 
thus  occupied ;  Fitts  v.  Cook,  5  Cush.  596,  601.  For  a  case 
where,  "  by  accepting  the  position  of  executor,  by  giving  bond, 
and  by  continuing  to  occupy  the  real  estate  left  by  the  de- 
ceased," one  was  held  to  have  "  adopted,  ratified,  and  confirmed 
the  will,"  and  was  thus  "  estopped  from  setting  up  any  claim  or 
right  which  would  defeat  it,"  see  Smith  v.  Wells,  134  Mass. 
11,  13. 

This  subject  is  more  fully  treated  under  estoppel  in  the  note 
to  Patterson  v.  Gandasequi,  and  the  subject  of  mutual  credits 
will  be  found  in  the  note  to  Rose  v.  Hart. 


DOVASTON   V.   PAYNE. 


35  G.2,  C.  P. 

[REPOUTKI)    2    II KN.    IM.. 


The  property/  of  a  highway  is  in  the  oumer  of  the  soil.,  subject  to  an 
eaaement  for  the  henejit  of  the  public.  Therefore.,  a  plea  in  bar 
of  an  avowry  for  takiny  cattle  Jamaye  feasant,  that  the  cattle 
escaped  from  a  public  hiyhway  info  the  l(»ciis  in  (|iit>,  thronyh 
the  defect  of  f  ■/ices,  must  show  that  they  were  passing  on  the 
liiglivvay  /chcn  they  escaped  ;  it  is  not  sufficient  to  state  that  be- 
iny  in  the  hiyhivay  they  escaped. 

Rki'LKVIN  for  taking  the  cattle  of  the  plaintiff.  Avowry  that 
the  defendant  was  seised  in  fee  of  the  locus  in  quo.,  and  took  the 
cattle  damage  feasant.  Plea,  that  the  locus  in  quo  "lay  con- 
tiguous and  next  adjoining  to  a  certftin  common  and  j)ublic 
king's  highway,  and  tliat  the  defendant,  and  all  other  owners, 
tenants,  and  occupiers  of  the  said  i)lacc  in  which,  &c.,  with  the 
appurtenances,  for  the  time  being,  from  time  whereof  the  mem- 
ory of  man  is  not  to  the  contrary,  have  repaired  and  amended, 
and  have  been  used  and  accustomed  to  repair  and  amend,  and 
of  right  ought  to  have  repaired  and  amended,  and  the  said  de- 
fendant still  of  right  ought  to  repair  and  amend  the  hedges  and 
fences  between  the  said  place  in  which,  &c.,  and  the  said  high- 
way, when  and  so  often  as  need  or  occasion  hath  been  or  re- 
quired, or  shall  or  may  be  or  require,  to  prevent  cattle  being  in 
the  said  highivay  from  erring  and  escaping  thereout  into  the 
said  place  in  which,  &c.,  through  the  defects  and  defaults  of  the 
said  hedges  and  fences,  and  doing  damage  there.  And  because 
the  said  hedges  and  fences  between  the  said  place  in  which,  &c., 
and  the  said  highway,  before  and  at  the  time  when,  &c.,  were 

1388 


DOVASTON    V.    PAYNE.  1389 

ruinous,  broken  down,  prostrated,  and  in  great  decay  for  want 
of  needful  and  necessary  repairing  and  amending  thereof,  the 
said  cattle  in  the  said  declaration  mentioned,  just  before  the 
said  time  wlien,  &c.,  being  in  the  said  highway^  erred  and  escaped 
thereout,  into  the  said  place  in  which,  &c.,  through  the  defects 
and  defaults,  &c.,  &c.  To  this  plea  there  was  a  special  de- 
murrer, For  that  it  is  not  sliown  in  or  by  the  said  plea,  that  the 
said  cattle,  before  the  said  time  when,  &c.,  when  they  escaped 
out  of  the  said  highway  into  the  said  place  in  which,  &c.,  ivere 
passing  through  and  along  the  said  higJiwag^  nor  that  they  had 
any  right  to  he  there  at  all,  &c. 

In  support  of  the  demurrer,  Williains,  Serjt.,  argued  as  fol- 
lows:  It  is  a  rule  in  pleading,  that  if  the  defendant  admits  the 
fact  complained  of,  he  must  show  some  good  reason  or  justifica- 
tion of  it.  If  the  cattle  in  this  case  had  escaped  from  an  ad- 
joining close  through  the  default  of  the  plaintiff's  fences,  the 
defendant  must  have  shown  that  he  had  an  interest  in  that 
close,  or  a  licence  from  the  owner  to  put  his  cattle  there.  Dyer 
365  a,  Sir  F.  Leke's  Case,  recognised  Hob.  104,  Dighg  v.  Fitz- 
herhert ;  for  a  man  is  bound  to  repair  against  those  who  have 
right,  but  not  against  those  who  have  no  right.  So  if  cattle 
escape  from  a  highway,  the  party  justifying  a  trespass  must 
show  they  were  lawfully  using  the  highway,  that  is,  were  pass- 
ing and  repassing  on  it,  which  is  material  and  traversable.  It 
is  not  sufficient  that  they  were  simply  in  it,  the  heiiig  there  is 
equivocal  and  not  traversable.  The  owner  of  the  soil  may  have 
trespass,  if  the  cattle  do  anything  but  merely  pass  and  repass, 
Bro.  Abr.  Tresp.  pi.  321,  and  according  to  this  principle,  the 
entries  state,  in  pleas  of  this  kind,  that  the  cattle  were  super 
viam  prcedictam  transeuntes,  Thomp.  Entr.  296,  297 ;  and  in 
Heme's  Plead.  822,  that  they  were  "  driven  along  the  highway .''' 

Hejjivood,  Serjt.,  contra.  —  The  same  strictness  is  not  required 
in  a  plea  in  bar  to  an  avowry  in  replevin,  as  in  a  justification  in 
trespass.  Here  tlie  plaintiff  pleads  the  plea,  and  it  is  sufficient 
for  him  to  show  that  his  cattle  v/ere  wrongfully  taken.  The 
passing  on  the  highway  is  as  uncertain  as  the  being  there,  and 
as  little  traversable.  But  the  material  issues  on  the  record 
would  be,  whether  the  fences  were  out  of  repair,  and  whether 
the  defendant  was  bound  to  repair  them.  If  he  wei-e,  it  is  im- 
material whether  the  cattle  were  passing  on  the  highway  or  not. 
In  a  plea  in  bar,  certainty  to  a  common  intent  is  sufficient.     It 


1390  DOVASTON     V.     I'AYNK. 

miiy  therefore  be  inteiuletl  th;it  the  eiittk;  were   hiwl'iilly  in   tho 
hinhwuy. 

Jjord  ('.  J.  Eijrc.  —  I  a^^rce  with  my  brother  Williams  as  to 
the  general  law  that  the  party  who  woulil  take  a<lvantage  of 
fences  being  out  of  re[)air,  as  an  exeiise  for  his  eattle  escaping 
from  a  way  into  the  land  of  another,  must  show  that  he  was 
lawfully  using  the  easement  when  the  cattle  so  eseaped.  This 
therefore  reduces  the  case  to  a  single  })oint,  namely.  Whether  it 
does  not  appear  on  the  plea,  to  a  common  intint,  that  the  cattle 
were  on  the  highway  using  it  in  such  a  manner  as  the  owner 
had  a  right  to  do,  from  the  worils  " />iini/  in  the  miiil  hiijhwai/^^  ? 
This  is  a  dilYcrcut  case  from  cattle  escaping  from  a  close,  where 
it  is  necessary  to  sliow  that  the  owner  had  a  right  to  put  them 
there,  because  a  highway  being  for  the  use  of  tiie  p«d)lic,  cattle 
may  be  in  the  highway  of  comiiiioii  light  ;  I  doubt,  therefore, 
whether  it  reipiires  a  more  [jartieular  statement.  It  would  ci-r- 
tainly  have  been  more  formal,  to  have  said  that  the  cattle  were 
passing  and  repassing ;  and  if  the  evidence  had  proved  that  they 
were  grazing  on  the  way,  though  the  issue  would  have  been 
literally,  it  would  not  have  been  substantially,  proved.  But  I 
doubt  whether  the  being  in  the  highway  might  not  have  been 
traversed;  and  if  the  being  in  the  highway  can  be  construed  to 
be  certain  to  a  common  intent,  the  plea  may  be  supported,  not- 
withstanding there  is  a  special  demurrer,  for  a  special  demurrer 
does  not  meet  a  mere  literal  ex[)ression.  The  i)receiK'nls  iiidccd 
seem  to  make  it  necessary  to  state  that  the  cattle  were  [)assing 
and  repassing,  but  they  are  but  few ;  yet  upon  the  whole  I 
rather  think  the  objection  a  good  one,  because  those  forms  of 
pleading  are  as  cited  by  my  brother  Williams. 

Buller,  J.  —  This  is  so  plain  a  case  that  it  is  ditlicult  to  make 
it  a  ground  of  argument.  But  my  brother  Heywood  says,  there 
is  a  difference  between  trespass  and  replevin  in  the  rules  of 
pleading.  In  some  cases  there  is  certainly  a  material  difference 
in  the  pleading  in  the  two  actions,  though  in  others  they  are 
the  same.  One  of  the  cases  in  which  they  differ  is,  th;;t  if  tres- 
pass be  brought  for  taking  cattle  which  were  distrained  damage 
feasant,  it  is  sufficient  for  the  defendant  to  say  that  he  was  pos- 
sessed of  the  close,  and  the  cattle  were  doing  damage  ;  but  in 
replevin  the  avowant  must  deduce  a  title  to  the  close.  A\'her- 
ever  there  is  a  difference,  it  is  in  favour  of  trespass  and  against 
replevin :  for  in  trespass  an  excuse  in  a  plea  is  sufficient,  but  in 


DO V ASTON    V.    PAYNE.  1391 

an  avowry  a  title  must  be  shown,  (a)  This  brings  me  to  the 
question,  Whether  the  plea  on  this  record  be  good  to  a  common 
intent?  Now  I  think  that  the  doctrine  of  certainty  to  a  com- 
mon intent  will  not  support  it.  Certainty  in  pleading  has  been 
stated  by  Lord  Coke  (b)  to  be  of  three  sorts,  viz.,  certainty  to  a 
common  intent,  to  a  certain  intent  in  general,  and  to  a  certain 
intent  in  every  particular.  I  remember  to  have  heard  Mr.  Jus- 
tice Ashton  treat  these  distinctions  as  a  jargon  of  words,  with- 
out meaning.  They  have,  however,  long  been  made,  and  ought 
not  altogether  to  be  departed  from.  Concerning  the  last  two 
kinds  of  certainty,  it  is  not  necessary  to  say  anything  at  pres- 
ent. But  it  should  be  remembered,  that  the  certain  intent  in 
every  particular  applies  only  to  the  case  of  estoppels  ((?).  By  a 
common  intent  I  understand  that  when  words  are  used  which 
will  hear  a  natural  sense,  and  also  aii  artificial  one,  or  one  to  be 
made  out  by  argument  or  inference,  the  natural  sense  shall  pre- 
vail :  it  is  simply  a  rule  of  construction,  and  not  of  addition  : 
common  intent  cannot  add  to  a  sentence  words  which  are 
omitted.  There  is  also  another  rule  in  pleading,  which  is,  that 
if  the  meaning  of  words  be  equivocal,  they  shall  be  taken  most 
strongl}"  against  the  party  pleading  them.  There  can  be  no 
doubt  that  the  passing  and  repassing  on  the  highway  was 
traversable  :  for  the  question.  Whether  the  plaintiff  was  a  tres- 
passer or  not?  depends  on  the  fact,  whether  he  was  passing 
and  repassing,  and  using  the  road  as  a  highway,  or  whether  his 
cattle  were  in  the  road  as  trespassers ;  and  that  which  is  the 
gist  of  the  defence  must  necessarily  be  traversable.  A  most 
material  point,  therefore,  is  omitted,  and  I  think  the  plea  would 
be  bad  on  a  general  demurrer.  But  here  there  is  a  special  de- 
murrer, and  as  the  words  are  equivocal  they  are  informal. 

Heath,  J.  —  The  law  is,  as  my  brother  Williams  stated,  that 
if  cattle  of  one  man  escape  into  the  land  of  another,  it  is  no  ex- 
cuse that  the  fences  were  out  of  repair,  if  they  were  trespassers 
in  the  place  from  whence  they  came.  If  it  be  a  close,  the  owner 
of  cattle  must  show  an  interest  or  a  right  to  put  them  there. 
If  it  be  a  way,  he  must  show  that  he  was  lawfully  using  the 
way ;  for  the  propertu  is  in  the  owner  of  the  soil,  subject  to  an 

(a)  See  the  note  to  ^/('^orv.  Spate-  (b)  Co.  Litt.  303. 

man,   1   Wms.   Saimd.  34G  e,  and  to  (c)  Co.  Litt.  ibid. 

J'oole  V.  Longueville,  2  Wms.  Saiuid. 
28-in. 


1392  D()\  ASTON     v.     I'AYNE. 

easement  for  the  benefit  of  the  public.  On  this  plea  it  does  not 
appear  whether  tiie  cattle  were  passin<r  and  repassing,  oi- 
whether  they  were  trespassing  on  the  highway  ;  the  words  used 
are  entirely  equivocal  (a). 

Rooke,  J.,  of  the  same  opinion. 

Judgfment  for  the  defendant. 


It  is  inteiuU'd  to  append  to  this  case  a  few  remarks  upon  the  bniiich  of 
law,  with  reference  to  which  it  is  usually  cited;   namely,  the  respective  rii^iits 
of  the  public,  and  of  the  owners  of  the  soil,  over  a  common  highway.     The 
questions  on  which  it  is  intended  to  touch  are  — 
I.    What  is  a  hi<;hway. 
11.    llow  it  oriijinates. 

III.  How  it  may  be  lost. 

IV.  How  it  is  to  be  kept  in  repair. 

I.  Ilit/fwriij. —  What.  —  A  hif/hicay  is  a  passaj^je  which  is  open  to  all  the 
king's  subjects.  Mr.  Wellbeloved  defines  it  to  be  a  thoroughfare ;  but  there 
are  still  doubts  whether  a  highway  must  necessaj'ily  have  been  originally  a 
thoroughfare ;  and  it  seems,  at  all  events,  that  if  a  highway  were  stf)pped  at 
one  end,  so  as  to  cease  to  be  a  thoroughfare,  it  would  in  its  altered  state  con- 
tinue a  highway;  jtrr  Patteson,  J.,  Bex  v:  Marquis  of  Dnwiishire,  4  A.  &  E. 
713.  However,  I  have  adopted  the  above  dertnition  as  the  safest;  since, 
whether  or  no  a  passage,  to  be  open  to  all  the  king's  subjects,  need  be  a 
thoroughfare,  it  is  clear  that  every  passage  which  is  open  de  jure  to  all  the 
king's  subjects,  must  be  a  highway.  (There  seems,  however,  to  be  no  longer 
any  doubt  that  there  may  be  a  public  highway  over  a  place  where  no  thor- 
oughfare exists.  Bateman  v.  Bluck  [18  Q  B.  870].  And  see  The  Trustees  of 
the  Rugby  Charity  v.  Merryiceather,  11  East,  375  n.  ISouch  v.  East  London 
liaihray  Co.,  L.  R.  1(!  E(i.  108,  42  L.  J.  Ch.  477.]) 

It  may  be  a  footway,  appropriated  to  the  sole  use  of  pedestrians ;  a  pack 
and  prime  tvay,  which  is  both  a  horse  and  foot  way;  or  a  cart  icay,  which 
comprehends  the  other  two,  and  also  a  cart  or  carriage  way.  Co.  Lit.  56  a. 
But  to  whichever  of  these  classes  it  belong,  it  is  still  a  highway :  for  "  high- 
way  is  the  genus  of  all  public  ways,  as  well  cart,  horse,  and  foot  ways."  Per 
Lord  Holt,  Regina  v.  Saintiff,  6  Mod.  255.  See  Logan  v.  Burton,  5  B.  &  C. 
513;  Allen  v.  Ormond,  S  East,  4;  R.  v.  Inhabs.  of  Salop,  13  East,  95;  Domina 
Regina  v.  Ghiworth,  Salk.  358.  See,  as  to  railroads,  R.  v.  Severn  and  Wye 
Railway  Co.,  2  B.  &  A.  64G. 

Nay,  (ixnn  public  rivers  are,  in  law,  to  be  considered  highways,  since  they  fall 
■within  the  dertnition  above  given,  and  are  passages  open  to  all  the  king's  sub- 
jects, 1  Lord  Kaym.  725;  2  Lord  Raym.  1174;  R.  v.  Hammond,  10  Mod.  382; 
Com.  Dig.  Chimin.  A.  1;  Mayor  of  Lynn  v.  Turner,  Cowp.  86;  R.  v.  Lord 
Grosrenor,  2  Stark.  511;  yfayor  of  Colchester  \.  Brooke,  7  Q.  B.  339;  Dimes  v. 
Petley,  15  Q.  B.  276.  [There  may  be  a  highway  along  the  top  of  a  river  em- 
bankment, Greenwich  Board  of  Works  v.  Mawdslay,  L.  R.  5  Q.  B.  397,  39  L.  J. 
Q.  B.  205.] 

(a)   [See  per  Cairns,  L.  C,  Bangleyv.  Midland  Rail.  Co.,'67  L.  J.  Ch.  313,316.] 


,  DOVASTON    V.    PAYKE.  1393 

The  interest  of  the  public  in  a  liigliway  consisting  solelj^  in  the  viglit  of 
passage,  tlie  soil  and  freehold  oa-er  which  that  right  of  way  is  exercised  may 
be,  and  generally  is,  vested  in  a  private  owner,  who  may  maintain  an  action 
against  persons  who  infringe  his  riglits  therein,  as,  for  instance,  by  permit- 
ting cattle  to  depasture  there.  See  the  principal  case,  and  Sir  John  Lade  v. 
Shepherd,  2  Str.  1005;   Stevens  v.  Whistler,  11  East,  51. 

[The  rule  that  the  interest  of  the  public  in  a  highway  consists  solely  in  the 
right  of  passage  is  well  illustrated  by  a  case  in  the  Court  of  Queen's  Bench, 
in  which  this  principle  was  applied  in  its  full  extent.  In  this  case,  R.  v. 
Pratt,  4  E.  &  B.  860,  Pratt  had  been  convicted  by  justices  under  the  1  &  2  Wm. 
4,  c.  32,  s.  30,  of  committing  a  trespass,  by  being  in  the  day-time  on  land  in 
the  occupation  of  B.  in  search  of  game.  On  appeal  a  case  was  reserved  b_v 
the  sessions  for  the  opinion  of  the  court,  and  the  facts  appeai'ed  to  be  that 
Pratt  was  in  tlie  day-time  on  a  public  road  (the  soil  of  wliich  as  well  as  the 
land  on  both  sides,  belonged  to  B.)  carrying  a  gun  and  accompanied  by  a  dog; 
that  Pratt  sent  the  dog  into  a  cover  by  the  road-side  which  was  in  the  actual 
occupation  of  B.,  and  that  a  pheasant  flew  across  the  road  from  the  cover  and 
was  flred  at  by  Pratt,  who  was  still  standing  upon  the  road.  Upon  these 
facts,  the  court  held  that  the  conviction  was  right,  the  road  being  laud  in  the 
occupation  of  B.,  subject  only  to  the  right  of  way  of  the  public,  and  the 
evidence  showed  that  Pratt  w\as  not  on  the  road  in  the  exercise  of  the  right 
of  way,  but  for  another  purpose,  namely,  the  search  for  game,  and  that  thus 
he  was  a  trespasser.  "  On  these  facts,"  said  Lord  Campbell,  C.  J.,  "  I  think 
that  the  magistrates  were  perfectly  justified  in  concluding  that  Pratt  was  tres- 
passing on  land  in  the  occupation  of  B.  in  search  of  game.  He  was  beyond 
all  controversy  on  land,  the  soil  and  freehold  of  Avhich  was  in  the  ow^ner  of 
the  adjoining  land,  that  is  B.  It  is  true  the  public  had  a  right  of  way  there; 
but  subject  to  that  right,  the  soil,  and  every  right  incident  to  the  ownership 
of  the  soil,  was  in  B.  The  road,  therefore,  must  be  considered  as  B's  land. 
Then  Pratt,  being  on  that  land,  was  undoubtedly  a  trespasser  if  he  went 
there,  not  in  exercise  of  the  right  of  way,  but  for  the  purpose  of  seeking 
game,  and  that  only.  If  he  did  go  there  for  that  purpose  only,  he  com- 
mitted the  offence  named  in  the  act;  he  trespassed  by  being  on  the  land  in 
pursuit  of  game.  The  evidence  of  his  being  tliere  for  that  purpose  is  ample. 
He  Avaved  his  hand  to  the  dog ;  the  dog  entered  the  cover  and  drove  out  a 
pheasant,  and  Pratt  fired  at  it.  The  magistrates  are  fullj'  justified  in  drawing 
the  conclusion  that  he  went  there,  not  as  a  passenger  on  the  road,  l)ut  in 
search  of  game." 

And  as  the  interest  of  the  public  is  thus  limited  to  the  riglit  of  passage  the 
owner  of  the  soil  may  continue  to  use  it  for  his  own  purposes  in  any  manner 
not  inconsistent  with  this  right.  St.  Mary  Ne^innriton  v.  Jacobs.  L.  R.  7  Q.  B. 
47,  41  L.  J.  M.  C.  72. 

As  to  the  right  of  a  Railway  Company  to  tunnel  under  a  higliway,  see 
Souch  V.  East  London  Ixailway  Co.,  L.  R.  16  Eq.  108,  42  L.  J.  Ch.  477.  It  is 
not  easy  to  see  why  tlie  owner  of  the  soil  beneath  a  public  highway  should  be 
bound  to  allow  a  Railway  Company  to  tunnel  through  it  without  paying  him 
compensation,  though  in  the  above  case,  Malins,  V.  C,  states  it  to  be  his 
opinion  that  the  Railway  Company  clearly  has  a  right  to  do  so.  In  a  subse- 
quent proceeding  in  the  same  case,  reported  22  W.  II.  566,  Bacon,  V.  C.,  said 
that  he  could  not  read  the  acts  of  Parliament  as  giving  poAvers  beyond  that 
wliich  Avas  necessary  for  the  maintenance  of  the  street  or  passage  :  all  beyond 
that  belonged  to  tlie  OAvners  of  the  property,  and  he  directed  an  account  to 


lo94  DOVASTON    V.     PAYNE. 

be  taken  of  the  compensation  to  l)e  paid  hy  tlie  companj'.  Comparfi  Goodson 
V.  lUrhardsdn,  L.  li.  9  Cli.  221,  vvliere  tlic  Lords  Justices  ijranted  an  injunc- 
tion to  restrain  tlie  contiiniancc  of  water-pipes,  wiiicli  liad,  witliout  tl»e  con- 
sent of  tlie  owner  of  tlie  soil,  been  laid  in  the  soil  of  a  liiicluvay.] 

The  genei'al  priniil  farin  presumption  of  law  is,  that  the  freehold  of  the 
road,  Jtsqtie  ad  medium  filum  vice,  is  in  the  proprietors  of  the  land  on  either 
side,  C()of>-e  v.  Gi'een,  11  Price,  7I3G;  Hi'dlam  v.  Ilendlry,  Holt,  4G3;  see,  how- 
ever, the  exception  stated  by  Lord  Denman,  C.  J.,  A*,  v.  Ilatjield,  4  A.  &  E. 
1G4,  and  per  Lord  Tenterden,  C  J.,  in  A',  v.  Edmonton,  1  M.  &  Rob.  24. 

This  presumption  applies  as  well  to  private  as  to  public  roads.  "  This  pre- 
sumption," said  Cockburn,  C.  J.,  in  the  modern  case  of  //o/m^.s  v.  lii'Uinijhnm, 
7  C.  H.  N.  S.  82!),  "  is  allowed  to  prevail  upon  i^rounds  of  public  convenience, 
and  to  prevent  tlisputes  as  to  the  precise  boundaries  of  property ;  and  it  is 
based  upon  this  supposition,  —  wiiich  may  l)e  more  or  less  founded  in  fact, 
but  which  at  all  events  has  been  adopted,  —  that  when  the  road  was  orijjinally 
formed,  the  proprietors  on  either  side  each  contriliuted  a  portion  of  his  land 
for  that  purpose.  I  think  that  is  an  equally  convenient  and  reasonable  prin- 
ciple, whether  applied  to  a  public  or  to  a  private  road,  but  in  the  latter  case 
it  must  of  course  l)e  taken  with  this  <iualillcati(»n,  that  the  user  of  it  has  been 
qua  road,  and  not  in  the  e.xercise  of  a  claim  of  ownership." 

[It  may,  however,  be  rebutted,  see  Beckett  v.  Corporation  of  Leeds,  L.  R.  7 
Ch.  421,  wliere  James,  L.  J.,  says  :  "  I  should  myself,  if  it  were  necessary  to 
determine  it,  he  very  slow  to  come  to  the  conclusion  that  where  there  is  a 
road  K"'""  through  an  estate,  and  a  site  is  jj^ranted  by  t!ie  roadside  for  the 
erection  of  a  cotta2:c  or  house,  and  a  cottajre  or  house  is  built  upon  that  site, 
the  mere  conveyance,  or  srant,  or  demise  of  a  piece  of  land  as  a  site  of  and 
for  the  purpose  of  buildinj;  a  house  is,  in  presumption  of  law,  a  grant  to  the 
middle  of  the  high-road,  the  frontage  of  which  is  proljably  the  origin  of  the 
house  being  bnilt  on  that  space."  See  also  the  Marquens  of  Salishuri/  v.  The 
Great  Northern  Hail.  Co.,  5  C.  B.  N.  S.  174,  as  to  what  provisions  in  local 
turnpike  acts  are  sufficient  to  rebut  this  presumption.  The  presumption  of  a 
grant  usque  ad  medium  Jilum  via-,  does  not  exist  where  the  parcel  conveyed  is 
described  as  bounded  by  an  intended  highway  which  has  never  in  fact  l)een 
dedicated,  Leif/h  v.  Jacl-,  5  Ex.  D.  2G4.  And  see  Landrock  v.  Metropolitan 
District  Rail.  Co.,  W.  N.  1886,  195.] 

So  likewise  the  waste  land  on  each  side  of  the  road  [is  presumed  to  belong 
to  the  adjoining  owners],  Steele  v.  Prickett,  2  Stark.  4(53;  Doe  v.  Pearsey,  7 
B.  &  C.  304,  [Tutel  v.  Local  Board  of  Health  for  West  Ham,  L.  R.  8  C.  P. 
447]  ;  unless,  indeed,  it  communicate  with  other  larger  wastes  belonging  to 
the  lord  of  the  manor,  Anon.  Loff't.  358;  Grose  v.  West,  7  Taunt.  39;  Doe  d. 
Barrett  v.  Kemp,  7  Bing.  332  [and  see  Gej'ij  v.  Bedman,  1  Q.  B.  D.  IGl. 

The  effect  of  the  Public  Health  Act,  1875,  ss.  4  and  149,  is  to  vest  the  soil 
of  a  highway  which  constitutes  a  "  street"  Avithin  the  Act  in  the  local  board, 
who  may  therefore  make  a  valid  lease  of  the  pasturage  of  the  strips  of  grass 
forming  the  sides  of  the  highwaj%  Corerdale  x.  Charlton,  4  Q.  B.  D.  104,  C. 
A.  This  interest  in  the  soil,  however,  ceases  on  the  extinction  of  the  high- 
way. Rolls  V.  St.  George  the  Martyr,  Southwark,  14  Ch.  D.  785,  C.  A.,  and  docs 
not  extend  to  a  proprietary  right  in  the  air  usque  ad  ccelum,  so  as  to  entitle 
the  local  authorit}^  to  an  injunction  restraining  the  suspension  of  a  telephone 
wire  across  the  "  sti'eet,"  no  nuisance  or  appreciable  danger  to  the  user  of 
the  street  being  shown  to  be  caused  thereby,  Wandsworth  Board  of  Works  v. 


DOVASTON    V.    PAYNE.  1395 

United  Telephone  Co.,  C.  A.,  13  Q.  B.  D.  004;  r>?,  L.  J.  Q.  B.  449;  a  case  de- 
cided under  s.  96  of  the  Metropolis  Manaiiciueiit  Act,  1855.] 

Nay,  not  only  may  the  soil  over  which  the  hiijliway  passes  be  vested  in  an 
individual,  but  it  may  be  subject  to  a  private  right  of  way  co-existent  with 
the  public  one,  Brownlow  v.  Tomlinson,  1  M.  &  Gr.  484.  Or  to  a  custom  of 
partial  interruption  for  a  limited  time  by  the  erection  of  booths  during  a 
fair,  Ehmod  v.  Btdlock,  G  Q.  B.  383.  The  right  of  the  public,  however,  is 
that  which  is  of  chief  importance,  and  is  principally  to  be  taken  care  of. 

And  therefore  if  a  highway  become  so  out  of  repair  and  founderous,  as  to 
be  impassable,  or  even  incommodious,  the  public  have  a  right  to  go  on  the 
adjacent  ground,  whether  it  be  cultivated  or  uncultivated,  1  Roll's  Abr.  390 
A.  pi.  1,  B.  pi.  1  ;  1  Hawk.  P.  C.  76,  s.  2;  Ahsor  v.  French,  2  Show\  29,  pi.  19; 
rayJor  v.  Whitehead,  Dougl.  749,  [2  Wms.  Saund.  161  n.  (12)]  ;  a  privilege 
which  the  grantee  of  a  private  way  can  under  no  circumstances  assume. 
Pomfret  v.  Bicroft,  1  Wms.  Saund.  322  a,  n.  3;  Taylor  v.  Whitehead,  nhi  supra; 
Bnllard  v,  Harrison,  4  M.  &  S.  387. 

[Even  as  to  the  case  of  a  public  way  doubts  are  expressed  in  Arnold  v. 
Holbroolc,  L.  R.  8  Q.  B.  96,  42  L.  J.  Q.  B.  83,  where  it  was  held  that  the  de- 
fendant had  no  right  to  deviate  from  a  public  footpath  Avhich  had  been 
ploughed  up,  the  dedication  being  limited  by  the  right  of  the  owner  so  to 
plough  it  up.  See  also  the  remarks  on  this  subject  in  Spearman  on  High- 
ways, p.  47. 

There  is,  however,  an  obvious  distinction  between  allowing  a  private  way 
to  become  founderous  and  actually  obstructing  it,  and  it  has  been  held  by  the 
Lords  Justices,  that  if  A.  grants  a  right  of  way  to  B.  over  his  field,  and  then 
places  across  the  waj'  an  obstruction  not  allowing  of  easy  removal,  the 
grantee  may  go  round  to  connect  the  two  parts  of  his  way  on  each  side  of 
the  obstacle  over  the  grantor's  land  without  trespass,  pter  Lord  Selborne,  C, 
Selby  V.  Nettle/old,  L.  R.  9  Ch.  Ill,  43  L.  J.  Ch.  357. 

Whether  this  right  of  going  on  the  adjacent  land  exists  in  cases  in  which 
the  highway  is  obstructed  by  a  wrong-doer  was  considered  in  Daices  v.  Haio- 
kins,  8  C.  B.  N.  S.  848.  Mr.  Justice  Williams  observed  that  it  is  remarkable 
that  in  the  text-books  this  right  is  confined  to  cases  in  which  the  highway  is 
founderous  and  out  of  repair;  and  that  on  principle  it  may  be  doubted 
whether  the  burthen  to  which  the  adjacent  soil  is  subjected  when  the  parish 
has  been  guilty  of  a  non-feasance  in  neglecting  to  keep  the  highway  in  re- 
pair, ought  to  be  likewise  inflicted  because  some  wrong-doer  has  put  an  ob- 
struction on  the  highway,  which  may  be  abated  as  a  nuisance  by  any  one  who 
has  occasion  to  use  the  road;  at  all  events,  unless  the  obstruction  be  of  such 
a  nature  that  practically  it  cannot  be  abated,  and  so  the  road  is  in  effect  im- 
passable. The  Lord  Chief  Justice  Earle  said,  however,  that  he  knew  of  no 
decision  and  no  principle  making  a  distinction  between  a,  I'oad  impassable  by 
non-feasance,  that  is,  neglect  of  repair,  and  a  road  impassable  by  mis- 
feasance, that  is,  by  ditch  and  bank  wilfully  made;  and  Mi*.  Justice 
Williams  added,  that  in  Ahsor  v.  French,  supra,  which  is  very  shortly  and 
obscurely  reported  in  2  Show.  29,  it  seems  to  liave  been  held  a  good  plea  to 
an  action  of  trespass  that  the  plaintiff  himself  had  stopped  a  highway  so  as 
the  defendant  could  not  pass,  and  therefore  he  went  over  the  plaintiff's  close, 
doing  as  little  harm  as  he  could.     See  as  to  this,  Selby  v.  Nettleford,  nbi  supra-l 

II.  As  to  the  mode  in  vhich  a  highway  is  created. — Except  where  this  is 
done  by  the  express  enactment  of  tlie  Legislature,  it  derives  its  existence 
from  a  dedication  to  the  public  by  the  owner  of  the  land  over  which  the 


1890  DOVASTON    V.    PAVNE. 

highway  extends,  of  .a  riirht  of  passasrc  over  it;  and  tins  dedication,  though 
it  he  not  made  in  express  terms,  as  it  indeed  sehloni  is,  may  and  will  l)e  pre- 
sumed from  an  unhiterrupted  use  l)y  tlie  jjublle  of  the  riglit  of  way  claimed, 
li.  V.  Lloyd,  1  Camp.  2(;o.  See  Britiuli  Museum  v.  Finnis,  5  C.  &  V.  4G0;  and 
the  Grand  Surrcij  Cannl  Co.  v.  Hall,  1  M.  &  Gr.  :}!)3.  [An  open  user  as  i)f 
riglit  i)y  the  pul)lie  raises  a  presumptive  inference  of  tU'dication  requiring  to 
lie  rebutted;  and  wlien  sucli  user  is  proved,  tiie  onus  lies  on  the  person  who 
seelis  to  deny  the  inference  resulting  from  it  to  show  negatively  that  the 
state  of  the  title  was  such  that  no  one  couhl  make  a  valid  dedication,  li.  v. 
Petrie,  4  E.  &  B.  737.] 

"  No  particular  time  is  neces.sary  for  evidence  of  a  dedication.  If  tlie  act 
of  dedication  be  unequivocal,  it  may  take  place  immediately.  For  instance, 
if  a  man  build  a  double  row  of  houses  opening  into  an  ancient  street  at  each 
end,  making  a  street,  and  sells  or  lets  the  houses,  that  is  instantly  a  high- 
way."    ]\r  Chambre,  J.,  in  Wnodycr  v.  Ilnddrn,  .")  Taunt.  Vi:>. 

Eight,  and  even  six  years,  have  been  held  time  enough  wherein  to  presume 
a  dedication  fnm)  user,  Tritstets  of  liughy  Charity  v.  Mcrryirrathcr,  11  East, 
37G.  Four  years  have  been  held  too  short  a  time.  But  all  de|)ends  upon  the 
special  circumstances  of  each  case,  as  will  be  understood  from  the  remarks 
of  Chambre,  J.,  above  cited,  /?.  v.  Hudson,  2  Str.  90!);  A',  v.  \Vri<jht,  3  B.  & 
Ad.  G81 ;  and  the  duration  of  the  public  user,  which  limits  the  rights  of  the 
owner  of  the  soil,  is  not  so  important  in  this  respect  as  tlie  nature  of  the 
acts  done  by  the  owner  o(  the  soil,  and  of  the  adverse  acts  acquiesced  in  by 
him,  as  well  as  the  intention  indicated  by  those  acts.  See  liey.  v.  Chnrlcy,  12 
Q.  B.  .515;  [Xorth  London  Raihray  Co.  v.  ,SV.  Mary  Isliinjton,  21  W.  H.  22G,  27 
L.  T.  N.  S.  G72. 

In  the  case  of  Dawes  v.  Hniokins,  8  C.  B.  N.  S.  H4H,  already  cited,  a  length- 
ened user  by  the  public  of  a  line  of  road  sul)siitutcd  for  an  ancient  highway 
which  continued  for  the  same  period  wrongfully  obstructed,  was  considered 
by  the  court  to  be  referable  to  the  right  of  the  public  to  deviate  on  the  ad- 
joining land  wlien  the  owner  of  the  soil  illegally  stops  up  the  highway,  or 
sutlers  it  to  become  founderous,  and  therefore  not  to  aftbrd  evidence  of  the 
dedication  to  the  pui)lic  of  the  substituted  way.  From  this  view,  however, 
Mr.  Justice  V>'illiams  dissented,  being  of  opinion  that,  as  the  owner  of  the 
soil  over  which  the  public  had  passed  had  for  many  years  submitted  to  this 
burtlicn,  instead  of  causing  the  obstruction  on  the  ancient  highway  to  be  re- 
moved, this  atl'onled  some  evidence  of  an  intention  to  dedicate  the  substituted 
highway  to  the  public] 

A  dedication  cannot  be  presumed  against  the  crown,  Harper  v.  Charles- 
worth,  4  B.  &  C.  574.  This,  however,  must  be  taken  with  some  qualification. 
See  Reg.  v.  East  Mark,  11  Q.  B.  877. 

As  a  dedication  to  the  public  will  be  presumed  where  circumstances  warrant 
it,  so  that  presumption  may  be  rebutted,  and  prevented  from  arising,  by 
circumstances  incompatible  with  the  supposition  that  any  dedication  has 
taken  place.  Tluis,  tliough  we  have  seen  that  if  a  man  open  a  useful  passage 
from  one  pul)lic  highway  or  street  into  another,  a  presumption  will,  in  course 
of  time,  arise,  tliat  he  has  dedicated  that  passage  to  the  puljlic;  yet  if  he 
place  a  bar  or  gate  across  the  road,  which  may  be  opened  and  shut  at  pleasure, 
the  presumption  of  dedication  is  rebutted.  Nay,  though  tlie  bar  or  gate  liave 
been  knocked  down,  the  fact  of  its  having  once  been  there  will,  at  least  for  a 
considerable  time,  prevent  tlie  presumption  of  a  dedication  from  arising, 
Roberts  v.  Karr,  1  Camp.  262,  note;  Lethbrid'je  v.  Winter,  1  Camp.  263.     See 


DOVASTOX    V.    PAYNE.  1397 

British  Mnseum  v.  Finnis,  5  C.  &  P.  460.  So  too  it  may  be  proved  that  the 
■user  took  place  undei-  an  agreement,  BarrarJnucih  v.  Johnson,  8  A.  «&  E.  104. 
See  Grand  Surreij  Canal  Co.  v.  Hall,  1  M.  &  Gr.  393;  and  Fcrrand  v.  MlUigan, 
7  Q.  B.  730.  [Healey  v.  Battey,  L.  R.  19  Eq.  375  ;  in  a  case  in  which  it  appeared 
that  a  road  had  been  originally  made  by  turnpike  trustees  under  a  temporary 
and  expired  act,  and  formed  a  portion  only  of  the  line  of  road  which  they  had 
been  authorised  to  make,  but  that  it  had  been  repaired  by  the  parish,  both 
before  and  after  the  expiration  of  the  temporary  act,  the  court  held  that 
there  was  evidence  of  a  dedication  and  of  an  adoption  by  the  public,  and  that 
the  circumstances  under  which  the  road  was  made  might  explain  away  such 
evidence,  but  did  not,  as  a  matter  of  law,  conclusively  rebut  it,  R.  v.  Thomas, 
7  E.  &  B.  399.] 

A  dedication  to  the  public  may  be  limited  in  point  of  time  by  acts  contem- 
poraneous with  the  dedication,  R.  v.  Hudson,  2  Str.  909 ;  R.  v.  Northampton, 
2  M.  &  S.  262.  See  R.  v.  Mellor,  1  B.  &  Ad.  32.  [That  is  to  say,  a  highway 
may  be  useable  by  the  public  at  certain  times  only;  as  in  R.  v.  Northampton, 
where  a  pviblic  bridge  was  used  by  the  public  at  all  times  when  it  was  dan- 
gerous to  pass  through  the  river.  But  a  dedication  once  made  cannot,  it  is 
said,  be  limited  in  duration.  "  If  a  Avay  is  dedicated  at  all,  it  must  be  dedi- 
cated in  perpetuity."     See  the  judgment  of  Byles,  J.,  in  Dawes  v.  Hawkins.'] 

But  whether  a  dedication  can  be  partial  in  its  extent,  is  a  question  of  some 
doubt  and  difficulty.  See  it  discussed  by  Mr.  Wellbeloved,  on  Highways, 
p.  52,  et  seq.  See  also  Marquis  of  Stafford  v.  Coyney,  7  B.  &  C.  257 ;  Rex  v. 
Leake,  2  N.  &  M.  595  ;  5  B.  &  Ad.  469  ;  Lethbridge  v.  Winter,  1  Camp.  263. 

[A  highway  may,  however,  be  dedicated  to  the  public,  subject  to  a  pre- 
existing right  of  user  by  the  OAvners  of  the  adjoining  lands  for  the  purpose 
of  depositing  goods  on  it;  so,  it  may  be  dedicated  with  an  obstruction  on  it, 
or  excavation  in  it,  or  near  it,  which  is  a  hindrance,  and  dangerous  to  passen- 
gers, and  which  if  placed  or  made  on  or  near  the  highway  after  its  dedication 
Avould  have  been  a  nuisance :  and  no  action  will  lie  against  the  person  dedi- 
cating in  respect  of  any  injurj'  caused  thereby.  See  Le  Neve  v.  Mile  End  Old 
Tovm,  8  E.  &  B.  1054;  the  judgment  in  Morant  v.  Chamberlin,  6  H.  &  N.  541 ; 
the  judgment  in  Fisher  v.  Prowse,  2  B.  &  S.  770;  and  Robhins  v.  Jones,  15 
C.  B.  N.  S.  221. 

So  there  may  be  a  dedication  of  a  footway  to  the  public,  subject  to  the 
reservation  by  the  owner  of  the  right  to  plough  it  up  periodically,  which  limit 
to  the  dedication  may  be  proved  by  user,  Mercer  v.  Woodgate,  L.  K.  5  Q.  B.  26, 

39  L.  J.  M.  C.  21,  followed  in  Cam.  Scacc,  Arnold  v.  Blaker,  L.  R.  6  Q.  B.  433, 

40  L.  J.  Q.  B.  185. 

The  law  on  this  subject  is  laid  down  by  Blackburn,  J.,  in  the  masterly 
judgment  of  the  Court  of  Queen's  Bench  in  Fisher  v.  Proivse,  in  the  following 
terms,  adopted  by  the  Common  Pleas  in  Bobbins  v.  Jones.  "The  law  is  clear 
that  if,  after  a  highway  exists,  anything  be  newly  made  so  near  to  it  as  to 
be  dangerous  to  those  using  the  highway  —  such,  for  instance,  as  an  excava- 
tion {Barnes  v.  Ward,  9  C.  B.  392),  this  Avill  be  unlawful  and  a  nuisance:  as 
it  also  is  if  an  ancient  erection,  as  a  house,  is  suftered  to  become  ruinous, 
so  as  to  be  dangerous  (Reg.  v.  Watts,  1  Salk.  357)  ;  and  those  who  make  or 
maintain  the  nuisance  in  either  case  are  liable  for  any  damage  sustained 
thereby,  just  as  much  as  if  the  nuisance  arose  from  an  obstruction  in  the 
highway  itself ;  but  the  question  still  remains  whether  an  erection  or  excava- 
tion already  existing  and  not  otherwise  unlawful,  becomes  unlawful  when 
the  land  on  which  it  exists,  or  to  which  it  is  inunediately  contiguous,  is  dedi- 


1398  IKfVASTON     V.     rAVNE. 

cated  to  the  public  as  a  way,  if  tlie  erection  prevents  the  way  from  l)c'iiig  so 
convenient  and  safe  as  it  otlierwise  wonld  be;  or  wlietlier,  on  tlie  contrary, 
tlie  (ifdication  must  not  be  talieii  to  be  nuuie  to  tlie  public,  and  aefei)tcd  by 
them,  subject  to  tiie  inconvenience  or  rislv  a'risinj;  from  tlie  oxisliiij;  state  of 
thinsjs.  We  tliini<  the  latter  is  tlie  correct  view  of  tlie  law.  It  is,  of  course, 
not  obligatory  on  the  owner  of  land  to  dedicate  tlie  use  of  it  as  a  iiii;iiway  to 
the  public.  It  is  ecjually  clear  tliat  it  is  not  compulsory  on  tlie  pui)lic  to 
accept  tlie  use  of  a  way  wlien  ort'ered  to  tiicin.  If  tlie  use  of  tlie  soil  as  a  way 
is  ottered  l)y  the  owner  to  the  public  untler  given  conditions  and  subj<»ct  to 
certain  reservations,  and  the  public  accept  the  use  under  such  circumstances, 
there  can  l)e  no  injustice  in  holdinu:  them  to  the  terms  on  whicli  tlic  benefit 
was  conferred. 

"()n  the  otlier  liaiid,  great  injustice  and  liardsliip  would  often  arise  if, 
when  a  public  riglit  of  way  lias  l)een  aci|uiii'il  under  a  given  state  of  circum- 
stances tl<e  owner  of  tlie  soil  slioiild  be  Iield  bound  to  alter  tliat  state  of 
circumstances  to  liis  own  disadvantagi'  and  loss,  and  to  make  further  conces- 
sions to  tile  pulilic  altogetlier  beyond  the  scope  of  liis  original  intention. 
More  especially  would  this  be  the  case  when  public  rights  have  been  acipiired 
by  mere  user.  For  instance,  the  owner  of  the  bank  of  a  canal  or  sewer  may, 
without  considering  the  eftect  of  what  he  is  doing,  permit  passengers  to  pass 
along  until  the  public  have  acquired  a  right  of  way  there.  It  is  often  hard 
upon  him  that  the  public  right  should  have  been  thus  ac(|uircd:  it  would  be 
doubly  so  if  the  conse(iuence  were  that  he  was  bound  to  till  up  or  fence  off 
his  canal."] 

It  was  decided  in  the  case  of  Poole  v.  I/i(skiiis(i)i,  II  .M.  &  W.  SUT,  that 
there  cannot  be  a  dedication  to  n  Umitnl  portion  of  tfip  puhlir.  Such  a  dedica- 
tion is  merely  void,  and  does  not  operate  as  a  dedication  to  the  whole  public. 
It  seems  clear,  however,  from  the  case  of  Poynton  v.  Wilson,  2  Lutw.  1507 
(not  cited  in  Poole  v.  Huskinson) ,  and  Co.  Litt.  4  a,  that  such  a  right  may  be 
created  by  custom.  [And  it  would  seem  that  an  owner  cannot  without  legis- 
lative authority  dedicate,  reserving  to  himself  a  right  to  take  toll  for  the 
user,  Avsterl>err>i  v.  Corporation  of  Oldham,  29  Ch.  1).  7.')().] 

It  must  also  be  observed  that  the  dedication  of  the  owner  of  a  particular 
estate  will  not  bind  those  in  remainder,  or  prevent  them  from  stopping  the 
Avay  dedicated,  when  the  estate  comes  into  their  possession,  Wood  v.  Veal,  5 
B.  &  A.  4.")4.  See  Baxter  v.  Taylor,  1  N.  &  M.  13;  li.  v.  lulmontnn,  1  M.  & 
Rob.  24.  Unless,  indeed,  in  the  course  of  the  period  during  which  the 
way  has  been  used,  there  have  been  a  succession  of  tenants,  or  the  landlord 
has  had  express  notice  of  the  user,  in  which  cases  his  assent  to  it  might  be 
implied,  B.  v.  Barr,  4  Camp.  16.  A  body  corporate  may  dedicate,  drand 
Surrey  Canal  Co.  v.  HaU,  1  M.  &  Gr.  393. 

The  assent  of  the  parisli  through  which  the  highway  runs  is  not  [at  com- 
mon law]  requisite  to  give  eflect  to  the  dedication  thereof  [as  regards 
repairs],  R.  v.  Leake,  5  B.  &  Ad.  469;  though  the  contrary  of  this  proposi- 
tion was  once  contended  for,  R.  v.  St.  Benedict,  4  B.  &  A.  447;  R.  v.  Mellor, 
1  B.  &  Ad.  32;  R.  v.  Cumbenrorth,  3  B.  &  Ad.  108;  R.  v.  Wrifiht,  3  B.  &  Ad. 
683.  See  now,  however,  on  this  subject,  5  &  6  W.  4,  c.  50,  s.  23,  [as  to  roads 
dedicated  since  the  passing  of  that  act]  cited  post. 

[It  should  further  be  observed  that  apart  from  the  question  of  liability  to 
repair,  it  is  necessary  for  the  public  to  assent  (of  which  user  would  be 
evidence),  in  order  that  a  way  may  become  public      See  the  judgment  of 


DOY  ASTON    V.    PAYNE.  1399 

Blackburn,  J.,  in  Fishpr  v.  Prou-se,  ubi  sup.,  and  of  Brett,  J.,  in  Cuhitt  v. 
Maxsp,  L.  R.  8  C.  P.  704.] 

It  lias  been  already  remarked,  that  a  highway  is  sometimes  created  bj'  an 
act  of  parliament  passed  for  that  pnrpose.  The  provisions  of  snch  an  act 
must  be  strictly  followed,  or  the  creation  will  not  take  place.  See  R.  v.  Has- 
liiirf field,  2  M.  &  S.  558.  Where  an  act  of  parliament  directed  a  road  from  A. 
to  B.,  it  was  held  that  the  whole  line  must  be  complete,  before  any  portion  of 
it  would  become  a  highway  repairable  by  the  parish,  R.  v.  Cumbericortk,  3 
B.  &  Ad.  108,  and  4  A.  &  E.  731 ;  R.  v.  Edge  Lane,  4  A.  &  E.  723.  [But  this 
proposition  was  held  by  the  Court  of  Appeal  to  be  no  longer  law%  Rerj.  v. 
French,  4  Q.  B.  D.  507,  48  L.  J.  M.  C.  175.]  Where  a  road  has  been  made  by 
trustees  under  a  local  and  temporary  act,  and  there  had  been  an  user  of  it  for 
a  considerable  time  b_v  the  public,  it  was  held  that  the  parish  was  liable  to 
repair  it  so  long  as  the  statute  authorising  its  construction  was  kept  in  force 
by  temporary  continuation  acts,  and  that  the  road  was  properly  described  in 
the  indictment  as  a  common  Queen's  liighway.  See  Reg.  v.  Lordsmere,  15 
Q.  B.  089,  and  R.  v.  Mellor,  sup7'a.  [Where  an  inclosure  award  and  map  made 
in  1808  set  out  a  strip  of  land  as  a  highway,  and  it  was  accordingly  set  out 
properly  by  metes  and  bounds  on  the  land  and  fenced,  but  was  never  com- 
pletely formed,  and  was  never  used  by  the  public,  it  was  held  that  it  never 
became  a  highway,  Cithitt  v.  Maxse,  L.  R.  8  C.  P.  704,  42  L.  J.  C.  P.  278.] 

m.  As  to  the  mode  in  which  a  highway  may  be  lost.  —  The  common  law  pre- 
sents no  means  by  which  a  public  right  of  way  can  be  lost  absolutely,  Fowler 
V.  Sanders,  Cro.  Jac.  44(5.  It  might,  however,  be  diverted  from  one  line  of 
road  into  another ;  and  that  either  by  the  act  of  God  —  as  if  a  navigable  river 
change  its  course,  see  Reg.  v.  Bamber,  5  Q.  B.  279;  Reg.  v.  Paul,  2  JM.  &  Rob. 
307,  coram  Maule,  J.;  or  by  proceedings  on  a  writ  entitled  that  of  ad  quod 
damnum,  which  is  an  original  writ  issuing  out  of  Chancery,  and  directing  the 
sheriff  to  summon  a  jury  to  inquire  whether  the  proposed  diversion  will  be 
detrimental  to  the  public,  and  to  return  the  inquisition  into  Chancery,  where 
any  person  injured  thereby  might  have  impeached  it.  "It  is  an  established 
maxim, — once  a  highway  always  a  highway;  for  the  public  cannot  release 
their  rights,  and  there  is  no  extinctive  presumption  or  prescription.  The 
only  methods  of  legally  stopping  a  higliway,  are  either  by  the  old  writ  of  nd 
quod  damnum,  or  by  proceedings  before  magistrates  under  the  statute."  See 
the  judgment  of  Byles,  J.,  in  Dawes  v.  Hawkins,  8  C.  B.  N.  S.  858;  [and  see 
Turner  v.  Ringwood  Highway  Board,  L.  R.  9  Eq.  418.  In  the  last  case.  Sir 
William  (then  V.  C.)  James  refused  to  grant  an  injunction  on  behalf  of  the 
alleged  owner  of  the  soil  of  a  road  against  the  Highway  Board  felling  trees 
which  had  grown  up  so  as  to  be  an  obstruction,  but  on  the  side  of  the  road 
where  thei-e  was  no  via  trita,  and  see  Wilkins  v.  Day,  12  Q.  B.  D.  110.  Where 
the  ways  giving  access  to  a  footway  have  by  oi'der  of  quarter  sessions  been 
stopped  up  at  both  ends  of  it,  the  footway  is  lost,  Bailey  v.  Jamieson,  1  C. 
P.  D.  329.] 

A  public  liighway  may,  of  course,  be  either  extinguished  or  diverted  by  act 
of  parliament;  and  statute  5  &  6  W.  4,  c.  50,  contains,  from  section  84  to  92, 
copious  directions  as  to  the  mode  in  which  it  maj"^  be  stopped  up  or  diverted 
by  two  justices.  Those  sections  enact,  that  whencA-er  the  inhabitants,  in 
vestry  assembled,  deem  it  expedient  that  a  highway  should  be  stopped, 
diverted,  or  turned,  either  entirely,  or  reserving  a  footway  or  bi'idle-way, 
the  chairman  shall,  in  writing,  direct  the  surveyor  to  apply  to  two  justices 
to  view  it  and  authorise  him  to  pay  the  expenses  of  the  view.     Any  inhabi- 


1400  DOV^ASTON    V.     I'AVNK. 

tant  [Jirg.  v.  Mnulr,  41  I>.  J.  M  C.  47,  23  L.  T.  N.  S.  850]  may  call  upon  the 
cluin-liwardcns  to  assfiiihle  a  vestry  for  this  purpose.  If  it  appears  to  the 
two  justifos.  u|)on  tlieir  view  [wliidi  must  l)e  personal,  Ji.  v.  Wdllucf,  4 
Q.  B.  1).  041],  that  the  hif^hway  may  beiu-llcially  be  sto|)ped,  diverted,  or 
turned,  anil  the  owner  of  the  land  throuijh  whicli  the  iwic  hiijluniij,  [see  livy. 
V.  Phillips.  L.  R.  1  ti.  B.  048,  in  wliieli  case  Wilrh  v.  \asfi,  8  East.  :V.>4,  was 
dissented  from,]  is  intended  to  be  made,  consent  in  writing,  notices  are  to  be 
atlixed  at  tlie  place  and  l)y  tiie  siile  of  eacli  end  of  the  roail.  [see  /ie;;.  v.  ././. 
of  Surreij,  L.  U.  5  Q.  B.  4(;(;]  published  for  four  weeks  runninjj;  in  a  county 
newspaper,  and  for  four  successive  Sundays  on  the  door  of  the  church  of 
each  parish  through  whicli  the  hijjhway  runs;  and  wlien  proof  has  been 
made,  to  the  satisfaction  of  the  justices,  of  the  i)ul)lication  of  such  notices 
[the  publication  of  which  is  therefore  a  condition  preceilent  to  the  justices 
jurisdiction,  Rkj.  v.  .htstiris  of  Sitrrcij,  L.  K.  ">  t^.  H.  4G<j,  ;{!>  L.  J.  M.  C.  4'J], 
and  a  plan  lias  been  laid  before  them  of  the  old  and  the  proposed  new  hijjh- 
Avays,  the  justices  are  to  make  their  certilleate.  which  is  to  be  lod<;etl  with 
the  clerk  of  the  peace,  anil  at  the  quarter  sessions  next  after  four  weeks 
from  the  day  of  its  beinjr  so  lodjjed,  is  to  be  read  in  open  court,  and  enrolled, 
together  with  the  proof,  plan,  and  consent,  among  the  records  of  the  quarter 
sessions.  The  stoppage  or  diversion  of  several  highways  connected  with 
each  other,  may  be  etlected  by  the  same  order  and  certilleate. 

Parties  aggrieved  by  such  certificate  may  appeal  to  the  said  (piarter  ses- 
sions, giving  ten  [increased  l)y  12  i<:  i:{  \'ict.  c.  4.">.  s.  1.  to  fourteen  (see  Iteg. 
V.  Miniie,  41  L.  J.  M.  C.  47)J  days'  notice,  and  a  statement  of  the  grounds  of 
appeal.  The  court  of  quarter  sessions  is  to  empanel  a  jury  to  try  this 
appeal,  to  decide  it  according  to  the  verdict,  and  to  award  costs  to  the  suc- 
cessful party.  If  there  be  no  appeal,  or  the  appeal  be  dismissed,  the  quarter 
sessions  are  to  make  an  order  for  the  diversion  or  stopping  the  old  highway, 
and  purchasing  tlie  ground  for  the  new  one.  which  henceforth  is  to  be  a 
public  highway. 

[As  to  the  notice  of  the  vestry  meeting,  see  R>'(/.  v.  Ptncoll,  L.  II.  8  Q.  B. 
403.  The  certificate  of  the  justices  for  tlie  diversion  of  a  highway  under 
sect.  85  may  be  granted  if  the  new  highway  is  either  "  nearer  or  more  com- 
modious" than  the  old  one;  see  Rcy.  v.  Phillips,  L.  U.  1  Q.  B.  <548,  in  which 
case  an  earlier  and  opposite  decision  of  the  Queen's  Bench  (Jir(/.  v.  Shiles, 
1  Q.  B.  91D)  was  dissented  from.  It  is  sutlicicnt  if  the  certificate  state  the 
existence  of  the  circumstances  required  by  the  section,  Reg.  v.  Harvey,  L.  R. 
10  Q.  B.  46.  (See  Public  Health  Act,  1875,  38  &  39  Vict.  c.  55,  s.  144,  as  to 
the  substitution  of  the  Urban  Sanitary  Authority  for  the  Surveyors  and  Ves- 
ti'ies  in  5  &  C  Wm.  4,  c.  50;  and  41  &  42  Vict.  c.  77,  ss.  4  and  5,  as  to  the  sub- 
stitution of  the  rural  Sanitary  Authority  for  Surveyors  and  Highway  Boards.) 

The  5  &  6  W.  4,  c.  50,  has  been  amended  and  extended  by  the  25  &  2(1  Vict, 
c.  61 ;  and  by  sect.  44  of  this  latter  act,  which  provides  for  the  appointment 
of  Highway  Boards,  all  the  provisions  of  the  earlier  act  for  widening, 
diverting,  and  stopping-up  higlnvays  are  made  applicable  to  highways  paved, 
repaired,  or  cleansed  under  any  local  or  personal  act,  except  highways,  which 
any  railway  company,  or  the  owners,  &c.,  of  any  canal,  river,  or  inland  navi- 
gation, are  liable  to  repair  or  cleanse  under  any  act  of  parliament. 

The  Highway  Act,  1864  (the  27  &  28  Vict.  c.  101),  and  the  41  &  42  Vict.  c. 
77,  also  contain  provisions,  altering  and  amending  the  5  &  6  W.  4,  c.  50.  It 
is  not  necessary  to  refer  to  these  enactments  at  length.  By  sect.  21,  how- 
ever, of  the  former  Act,  it  is  provided  that  when  any  highway  board  con- 


DOVASTON    V.    PxVYNE.  1401 

siders  any  highway  to  be  unnecessary  for  public  use,  they  may  direct  the 
district  surveyor  to  apply  to  two  justices  to  vieAV  it,  and  thereupon  the  like 
proceedings  (including  the  appeal  to  quarter  sessions,  Rpai.  v.  Justices  of  Sur- 
rey, L.  R.  5  Q.  B.  87 ;  Sd  L.  J.  M.  C.  145)  may  be  taken  as  where  an  application 
is  made  to  stop  up  a  highway  under  the  5  &  G  W.  4,  c.  50,  except  that  the 
order  to  be  made  thereon,  instead  of  directing  the  highway  to  be  stopped  up, 
must  direct  that  it  shall  cease  to  be  a  highway  which  the  parish  is  liable  to 
repair,  and  the  liability  of  the  parish  sliall  cease  accordingly.  The  same  sec- 
tion contains  a  provision  enabling  the  court  of  quarter  sessions  to  direct  that 
the  liability  of  the  parish  to  repair  shall  revive,  if  it  appears  at  any  time 
thereafter,  on  the  application  of  any  person  interested  in  the  maintenance  of 
the  highway,  that  fro7n  any  change  of  circumstances  since  the  making  of  the 
order  which  freed  the  parish  from  liability,  tlie  highway  in  question  has 
become  of  public  use,  and  ought  to  be  kept  in  repair  by  the  parish,  41  &  42 
Vict.  c.  77,  s.  24. 

The  Highways  and  Locomotives  (Amendment)  Act,  1878,  41  &  42  Vict, 
c.  77,  contains  in  sect.  24  analogous  provisions  wherebj',  at  the  instance  of 
any  authority  liable  to  keep  any  highway  In  repair,  the  Court  of  Summary 
Jurisdiction  of  the  Petty  Sessional  Division  may,  after  similar  formalities, 
declare  such  highway  unnecessai'y  for  public  use,  and  that  it  ought  not  to  be 
repaired  at  the  public  expense.  There  is  also  a  like  provision  enabling  the 
quarter  sessions  to  direct  that  the  liability  of  such  highway  to  be  repaired  at 
the  public  expense  shall  revive.] 

Besides  the -above  enactments  the  Turnpike  Acts  contain  provisions  ajipli- 
cable  to  that  class  of  Avays  only. 

IV.  As  to  the  mode  in  which  a  hiyhioay  is  to  he  repaired.  —  At  common  law, 
the  liability  to  repair  all  highways  within  a  parish  rests  on  the  occupiers  of 
the  land  thei-ein,  1  RoUe's  Abr.  390 ;  Austin's  Case,  1  Vent.  183,  i) ;  R.  y.  St. 
George,  Hanover  Square,  3  Camp.  222;  R.  v.  Netherthong,  2  B.  &  A.  179; 
IGuhitt  V.  Maxse,  L.  R.  8  C.  P.  704;  42  L.  J.  C.  P.  278 ;  Reg.  v.  Bradfield,  L.  R. 
9  Q.  B.  552,  where  it  was  held  that  there  was  nothing  in  the  fact  of  a  road 
having  been  originally  in  1789  set  out  in  an  inclosure  award  making  it  repair- 
able by  the  adjoining  landowners,  to  prevent  it  from  becoming  by  dedication 
implied  from  user,  a  highway  repairable  by  the  inhabitants  at  large ;  and  R. 
V.  St.  Benedict,  4  B.  &  A.  447,  apparently  to  the  contrary,  is  discussed.] 

5  &  G  W.  4,  c.  50.  s.  27,  I'egulates  the  mode  in  whicli  a  rate  is  to  be  made  for 
that  purpose,  upon  all  property  liable  to  be  rated  to  the  I'elief  of  the  poor, 
and  "such  woods,  mines,  and  quarries  of  stone  or  other  hereditaments  as 
have  heretofore  been  usually  rated  to  the  highways,"  — that  is  to  say,  such 
woods,  &c.,  as  have  been  usually  rated  to  the  highways  in  the  particular  parish 
where  the  rate  is  made.  Therefore,  timber-woods,  which  had  not  for  a  num- 
ber of  years,  before  and  up  to  the  passing  of  tlie  act,  been  I'ated  to  the  high- 
ways in  the  parish  in  which  they  were  situate,  were  held  not  to  be  rateable 
after  the  passing  of  the  act,  although  similar  woods  had  always  been  rated 
in  the  neighbouring  parislics  and  country  generally,  R.  v.  Rose,  G  Q.  B.  153. 
So  that  property  may  be  rateable  in  one  parish,  to  the  repair  of  the  highways, 
whilst  the  same  description  of  property  is  not  so  rateable  in  another.  Where 
a  place  happened  to  be  extra-parochial,  it  seemed  doubtful  how  the  repair 
was  to  be  enforced,  R.  v.  Kingsmoor,  2  B.  &  C.  190;  and  see  Reg.  v.  Midiille, 
4  Q.  B.  240.  [The  45  &  46  Vict.  c.  27,  extends  certain  provisions  of  the  Poor 
Rate  Assessment  Act,  1869,  to  the  Highway  Kate  ] 

The  liability  of  the  parishioners  may  indeed  be  suspeniled,  and  the  burden 


1402  DOVASTON   V.   pavnp:. 

imposed  on  other  persons,  under  certain  circumstances.  But  then,  if  those 
persons  l)ecome  in  any  way  unable,  or  cease  to  bo  compellable,  to  perform 
the  duty  of  reparation,  tjje  dormant  liability  of   the  parisiiionors  revives, 

Vounn  V. ,  1  Lord  Kaym.  725;  A',  v.  Sh^fflehl,  2  T.  K.  IOC;  R  v.  Ox/onl- 

shire,  4  B.  &  C.  IIU ;   AV;/.  v.  LnnUmere,  15  Q.  II.  G8'J. 

Nor  can  tlic  i»arish,  l)y  any  airreement  whatever,  exonerate  Itself  from  this 
inherent  lial)ility,  U.  v.  Mmjor  of  Lii'in-pin,!,  .S  East,  80. 

By  4  &  5  Vict.  c.  H'.)  [amended  by  34  &  35  Vict.  c.  115,  s.  15  and]  continued 
by  several  acts,  the  last  of  which  is  [the  41  &  42  Vict.  c.  <!2],  justices  at  spe- 
cial sessions,  on  proof  of  the  deficiency  of  the  funds  of  any  turnpike  trust, 
may  order  a  portion  of  the  hij^lnvay  rate  to  be  paid  to  the  trustees,  for  the 
repair  of  such  portion  of  the  turnpike  road  as  lies  within  the  i)arish  in  wliicii 
the  rate  is  made;  and  the  justices  have  power  to  make  such  an  <)r(k^r, 
altiiouijh  tiie  dellciency  in  the  trust-fund  has  been  occasioned  by  payment  of 
interest  upon  a  pre-existin<r  debt.  Sec  A',  v.  M'hi/t,  4  Q.  B.  101.  [W'rdnhill 
Hiijhxrtui  Board  v.  Ihtinbridiji',  L.  R.  1  Q.  B.  \VM\,  wliere  R.  v.  White  was  dis- 
tiny;uislied.  See  also  Market  Ifarhoron/jh  Trustees  v.  lutterimj  //ii/hiraij 
Board,  L.  H.  8  Q.  B.  308;  42  L.  J.  M.  C.  i:)7 ;  and  /d.  v.  .\farket  Ilarhunnu/h 
lliilhwaij  Board,  L.  K.  8  g.  B.  327 ;  42  L.  J.  M.  C.  139.  By  33  &  34  Vict.  c.  73, 
s.  10,  the  cost  of  maintainini;  hiijliways  which  cea.se  to  be  turnpike  roads  is 
made  a  charj^e  on  the  common  fund  of  tlie  hi;;hway  district  thron^li  which  it 
passes.  35  &  3()  Vict.  c.  85,  contains  provisions  (ss.  14,  15)  for  highway 
boards  taking;  u|)on  themselves  tlie  repairs  of  turnpike  roads,  antl  like  provis- 
ion is  made  by  the  Public  Health  Act,  1875,  38  &  3'J  Vict.  c.  55,  s.  14H,  with 
respect  to  urban  authorities  created  under  that  Act. 

By  41  &  42  Vict.  c.  77,  s.  13,  the  Ilijjhways  and  Locomotives  (Amendment) 
Act,  1878,  roads  which  since  the  last  day  of  l)eceml)er,  1870.  have  ceased  to 
be  turnpike  roads  or  will  cease  to  be  turnpike  roads  after  the  passinir  of  the 
Act  are  to  be  deemed  main  roads,  and  half  the  expense  of  their  maintenance 
Is  to  be  contrilmted  out  of  the  county  rate  on  the  certificate  of  the  surveyor 
that  such  road  has  been  maintained  to  his  satisfaction.  See  on  the  construc- 
tion of  this  section: — Mai/nr  of  Ocer  Dariren  v.  Justices  of  Lancashire,  15 
Q.  B.  1).  20;  54  L.  J.  M.  C.  51  ;  Guardians  if  Amesf>ur>j  v.  Justices  of  Wilts, 
10  Q.  B.  D.  480;  52  L.  J.  M.  C.  (54;  Justices  if  Lancashire  v.  Corporation  if 
liochdale,  8  App.  Cas.  494;  53  L.  .1.  ^L  C.  5;  Justices  of  West  Ridimj  v.  The 
Queen,  8  App.  Cas.  781;  53  L.  J.  M.  C  41  ;  Justices  if  Lancashire  v.  Xeinton 
Improvement  Commissioners,  11  App.  Cas.  4ir). 

It  is  further  provided  by  sect.  15  that  under  certain  conditions  the  county 
authority  shall  declare  certain  ordinary  highways  to  be  main  roads,  and  ])y 
sect.  16  the  same  authority  may  apply  to  the  Local  Government  Board  to 
declare  that  certain  roads  which  by  sect.  13  are  constituted  main  roads  ought 
not  to  become,  or  should  cease  to  be  such. 

By  sect.  7  of  the  same  statute  all  expenses  incurred  ))y  any  highwiiy  board 
in  keeping  in  repair  the  highways  of  each  parish  within  their  district  shall  be 
deemed  to  have  been  incurred  for  the  benefit  of  the  several  parishes  within 
the  district,  and  sliall  be  charged  on  the  district  fund.  But  if  the  highwaj- 
board  think  it  just  that  by  reason  of  any  exceptional  circumstances  any  par- 
ish or  parishes  should  bear  the  expense  of  maintaining  their  own  highways, 
they  may  divide  their  district  into  parts,  and  charge  exclusively  on  each  of 
such  pai'ts  (which  must  consist  of  more  than  one  highway  parish),  the 
expenses  payable  by  such  higliway  board  in  respect  of  maintaining  and  keep- 
ing in  repair  the  highways  situate  in  each  such  part.] 


DOVASTON     V.    PAYNE.  1403 

The  common  law  liability  to  repair  all  the  highways  situate  within  it,  under 
which  every  parish  lay,  has  been  a  good  deal  narrowed  by  statute  5  &  6  W.  4, 
c.  50,  so  far  as  respects  roads  constructed  by  private  individuals,  after  the 
passing  of  that  act. 

The  23rd  section,  which  is  not  retrospective,  B.  v.  Westmark,  2  M.  &  R.  305, 
enacts  that  no  road  made  by  a  private  person  or  corporation,  or  set  out  as  a 
private  drift-way  or  horse-path  by  the  award  of  inclosure  commissioners, 
shall  be  deemed  a  highway  repairable  by  the  parish,  unless  three  months' 
notice  be  given  to  the  surveyor  of  the  intention  to  dedicate,  and  unless  it  be 
substantially  made,  to  his  satisfaction,  and  that  of  two  justices,  who  are  to 
view  and  certify,  and  their  certificate  is  to  be  enrolled  at  the  next  sessions. 
The  surveyor,  on  receipt  of  the  notice,  is  to  call  a  vestry,  and  if  they  deem 
the  new  road  not  of  sufficient  utility,  the  question  is  to  be  determined  by  the 
next  special  sessions  for  the  highways. 

Hence  it  appeal's  that  the  sort  of  dedication  which  shall  suffice  to  entitle 
the  public  to  a  road,  will,  for  the  future,  be  different  from  that  which  must 
take  place  in  order  to  burden  the  parish  Avith  the  duty  of  repairing  it.  See 
li.  V.  Leake,  5  B.  &  Ad.  469;  R.  v.  \Vru/ht,  3  B.  &  Ad.  683;  li.  v.  Mellor,  1 
B.  &  Ad.  32;  Grand  Surrey  Canal  Co.  v.  Hall,  1  M.  &  G.  393;  and  accordingly 
in  Boberts  v.  Hunt,  15  Q.  B.  17,  it  was  held  that  a  road  dedicated  to,  and  used 
by  the  public,  is  still  a  public  highway,  although  the  requirements  of  the  23rd 
section  of  the  statute  have  not  been  complied  with,  so  as  to  make  it  repair- 
able by  the  parish;  see  also  Fawcett  v.  York  and  North  ]\Hdland  Eaihrnii  Co., 
10  Q.  B.  614  (rt)  ;  [and  li.  v.  Thomas,  7  E.  &  B.  399,  where  it  was  held  that  a 
non-compliance  with  tlie  provisions  of  this  section  did  not  operate  to  relieve 
a  parish  from  the  liability  to  repair  a  road  which  had  been  originally  made  by 
turnpike  trustees  under  a  temporary  act  and  had  been  used  by  the  public,  and 
repaired  by  the  parish,  both  before  and  after  the  expiration  of  the  act. 

An  appeal  by  the  persons  dedicating  the  highway  lies  to  the  quai'ter  ses- 
sions against  an  order  by  justices,  under  this  section,  adjudging  that  a  new 
road  is  not  of  sufficient  utility  to  justify  its  being  kept  in  repair  by  the  parish, 
R.  V.  Justices  of  Derbyshire,  1  E.  B.  &  E.  69. 

St7'eets  which  become  highways  within  districts  to  which  the  Public  Health 
Acts  have  been  applied,  are  placed  by  those  statutes  under  the  management 
and  control  of  the  sanitary  authority.  And  when  any  street,  not  being  a 
highway  at  the  time  when  the  Public  Health  Acts  are  applied  to  the  district 
in  which  it  is  situated,  is  sewered,  levelled,  paved,  flagged,  and  channelled  to 
the  satisfaction  of  the  sanitary  authority,  the  sanitary  authority  may,  by 
notice  in  writing  put  up  in  the  street,  declare  it  to  be  a  highway,  and  there- 
upon it  becomes  a  highwaj''  repalral)le  under  the  rates  levied  under  these  acts. 
The  sole  proprietor  of  the  street,  or  if  there  is  more  than  one,  the  majority 
in  num1:)er  of  the  proprietoi's,  may,  however,  object  by  notice  in  writing  to 
such  declaration,  and  so  interfere  with  the  action  of  the  sanitary  authority. 
See  sects.  68  and  70  of  the  11  &  12  Vict.  c.  03,  and  sect.  42  of  the  21  &.  22 
Vict.  c.  98,  38  &  39  Vict.  c.  55,  s.  149.  Hesketh  v.  Local  Board  of  Atherton, 
L.  R.  9  Q.  B.  4,  43  L.  J.  Q.  B.  32.  The  term  "  highway,"  as  used  in  the  sec- 
tions means  highways  "  repairable  by  the  inhabitants  at  large;  "  see  the  15  & 
16  Vict.  c.  42,  s.  13,  which  words  are  used  in  contra-distinction  to  "repair- 
able by  individuals  ni/ioin'  tninra-."  (tilismi  v.  .Maynr  if  Prc'^/aii,  !>.  R.  5  Q.  H. 
218;  and  see  Hirst  v.  Hilifax  Local  Board,  L.  R.  6  Q.  B.  LSI,  40  L.  J.  jNI.  C.  43. 

It  is  by  no  means  clear  whether  these  provisions  were  meant  to  supersede 
altogether  the  enactments  of  the  23rd  section  of  the  5  &  6  W.  4,  c.  50,  where 


1404  DOVASTON     V.     I'AYNE. 

the  new  hij^hwuys  are  urban  hijrhways  or  streets,  or  wliether  it  was  intended 
tiiat,  in  cases  of  dedication  l)y  |>rivate  persons  or  corporations,  tlie  uiacliinery 
both  of  this  act  and  of  the  Puijlic  Health  acts  should  l)e  applied.  See  lieg.  v. 
Inhahs.  of  Dukinfidd,  4  B.  &  S.  158.] 

Special  provisions  have  been  made  by  the  Legislature  respcctlti;^  tlic  rc|)air 
of  roads  wiiicli  liappen  to  pass  alon;;  the  boundary  line  of  two  jiarislies,  so  as 
to  have  one  side  in  one  parisii,  and  the  other  side  in  another  parish.  See  5  & 
6  \V.  4,  c.  50,  ss.  58,  51),  (;0,  «1 ;  Rffj.  v.  Perkins,  14  Q.  B.  2L".t. 

It  has  been  said  that  the  common-law  liability  to  repair  hiiiliways,  may  be 
imposed  on  other  persons  tlian  tiie  parishioners  at  hirjje  under  certain  cir- 
cumstances.    These  are  — 

1.  Where  the  owner  of  the  land  through  which  a  highway  passes,  incloses, 
in  which  ca.se  he  becomes  liable  to  repair  as  much  of  it  as  he  has  inclosed, 
Sir  E.  Duncuinbe's  Case,  Cro.  Car.  3(;(>;  tlie  reason  of  this  is  that  tiie  inclo- 
sure  prevents  the  public  from  exercising  their  right,  which  has  been  before 
spoken  of,  riz.,  that  of  going  on  the  adjacent  land  wiien  the  highway  is  im- 
passable; and  the  repairs  to  whidi  he  is  subjected  are  stricter  than  the  lia- 
bility even  of  tlie  parish,  for  tlie  parish  is  oidy  obliged  to  keep  the  road  in , 
tlie  .same  state  in  which  it  has  always  been;  whereas  the  person  who  has 
inclosed,  is  bound  to  maintain  <t  fiirffrt  ijimd  way ;  and,  if  he  do  not,  tlie  pub- 
lic may  justify  making  gaps  in  his  inclosure,  and  going  into  his  grounds  as 
far  as  is  necessary  to  avoid  the  bad  way,  Ilenn's  Case,  Sir  W.  Jones,  2ytj;  see 
R.  V.  Flecknow,  Burr.  461,  and  3  Salk.  182;  also  the  observations  of  Abbott, 
C.  J.,  in  Steele  v.  rrivkett,  2  Stark.  4G8,  et  seq.  He  may,  however,  get  rid  of 
his  liability  by  destroying  his  inclosures.  A',  v.  Stoinihtnn,  2  Wins.  Saund. 
lOO,  note  12.  When  there  is  an  ancient  inclosure  on  one  siilc  of  a  road,  and 
the  owner  of  the  land  on  the  other  side  incloses  it,  he  shall  maintain  the  whole 
way,  li.  v.  Stoui/hton,  2  Wms  Saund.  IGl,  note;  if  there  be  no  such  ancient 
inclosure,  he  shall  only  repair  half  the  way,  li.  v.  Slouyhton,  1  Sid.  404; 
where  two  inclose,  they  shall  n-puir  the  way  in  moieties,  ibid.;  and  see  2 
Wms.  Saund.  161,  in  notis. 

[It  may  be  mentioned  here  that  the  owner  of  land  is  under  no  legal  obliga- 
tion to  fence  an  excavation  in  it,  unless  it  is  made  so  near  to  a  public  road  or 
way  as  to  constitute  a  public  nuisance,  Uminsell  v.  Smyth,  7  C.  B.  N.  S.  731; 
and  when  a  person  dedicates  a  way  to  the  public,  he  restricts  himself  in  the 
use  of  the  adjoining  land  only  to  this  extent :  he  cannot  make  any  use  of  the 
land  which  reiulers  the  way  dangerous  to  persons  who  are  upon  it,  and  using 
it,  for  this  would  be  derogating  from  his  grant.  lie  is  not,  however,  bound 
to  fence  the  adjoining  land,  even  though  it  contain  an  excavation,  nor  is  he 
liable  to  a  person  who  strays  from  the  road  and  is  injured  by  falling  into  the 
excavation,  unless  it  substantially  adjoins  the  highway  so  as  to  constitute  a 
nuisance.  See  the  judgment  of  the  Court  of  Exchequer  in  Hardcastle  v.  The 
South  Yorkshire  Railway  Co.,  4  H.  &  N.  67.  See  also  Barnes  v.  Ward,  9  C.  B. 
392;  and  Binks  v.  The  South  Yorkshire  Rail.  Co.,  3  B.  &  S.  244. 

In  Hadley  v.  Taylor,  L.  R.  1  C.  P.  53,  the  occupier  of  an  unfurnished  ware- 
house adjoining  a  highway  was  held  liable  for  not  fencing  a  '-hoisthole" 
within  14  inches  of  the  highway,  used  to  raise  goods  from  the  cellar  to  the 
upper  floor  of  the  warehouse. 

A  person  who  uses  any  part  of  a  highway  in  an  unreasonable  manner  to  the 
special  damage  of  an  individual  passing  along  it  is  liable  to  an  action.  As, 
for  instance,  if  he  leave  a  van  and  steam  plough  or  a  roller  on  the  grassy  side 
of  a  highway,  whereby  a  horse  is  frightened,  although  the  obstacle  did  not 


DOVASTON    V.    PAYNE.  1405 

project  into  the  t-ia  trita  sufficiently  to  obstruct  the  passage  there.  Harris  v. 
Mohbs,  3  Ex.  D.  268;  WiVdas  v.  Day,  12  Q.  B.  D.  110;  see  also  Fritz  v.  Hob- 
son,  14  Ch.  D.  542,  49  L.  J.  Ch.  321. 

But  a  private  individual  cannot  of  his  own  authority  abate  a  nuisance  in  a 
public  highway  unless  it  does  him  a  special  injury,  and  he  can  only  interfere 
with  it  as  far  as  is  necessary  to  exercise  his  right  of  passing  along  the  high- 
way, Dimes  v.  Petley,  15  Q.  B.  276;  Arnold  v.  Holbrook,  L.  R.  8  Q.  B.  96,  42 
L.  J.  Q.  B.  80 ;  Denupy  v.  Thicaites,  2  Ex.  T>.  21. 

It  is  the  duty  of  persons  diverting  a  highway  under  statutory  powers  to 
take  proper  pi'ecaution  by  fencing,  or  otherwise,  to  protect  passengers  at  the 
point  of  diversion;  Hunt  v.  Taylor,  14  Q.  B.  D.  918,  54  L.  J.  Q.  B.  310. 

We  have  already  seen  (ante,  p.  167)  that  if  a  highway  is  dedicated  to  the 
public  with  a  dangerous  obstruction  on  it,  or  excavation  in  it  or  near  it,  no 
action  can  be  maintained  against  the  person  dedicating  for  an  injury  caused 
thereby.] 

2.  The  burthen  of  repair  may  be  cast  on  a  particular  person  by  prescrip- 
tion; this  prescription,  if  alleged  against  a  corporation,  may  be  general  (see 
B.  V.  Birmingham  and  Gloucester  Baihoay  Co.,  3  Q.  B.  223,  where  the  question 
was  discussed  whether  an  indictment  for  non-repair  would  lie  against  a  cor- 
poration, and  held  that  it  would;  and  see  B.  v.  Great  Northern  Bailway  Co., 
9  Q.  B.  315)  ;  but,  if  alleged  against  an  individual,  some  consideration  for  it 
must  be  shown,  ex  (jr.,  the  having  lands  holden  by  such  service,  1  Hawk.  P.  C. 
c.  76,  s.  8.  See  B.  v.  Kerrison,  1  M.  &  S.  435;  13  Rep.  33;  Bac.  Abr.  High- 
way, F. ;  B.  v.  St.  Giles,  5  M.  &  S.  260 ;  and  Priestley  v.  Foulds,  2  M.  &  G.  175. 
And  when  lands  holden  by  such  charge  are  conveyed  to  several,  the  charge  is 
not  apportioned  among  them,  but  each  is  liable  to  the  whole  repairs,  and 
must  have  contribution  from  the  others,  Begina  v.  Duchess  of  Bncklngh,  1 
Salk.  358;  A',  v.  Buckeridge,  4  Mod.  48;  3  Vin.  Abr.  Apportionment,  5,  pi.  9. 

[So  if  there  can  be  a  prescriptive  liability  of  one  parish  to  repair  highways 
in  another  parish,  which  is  doubtful,  it  can  not  arise  except  on  sufficient  con- 
sideration, Reg.  V.  Ashhy  Folville,  L.  R.  1  Q.  B.  213.  As  to  exemption  by 
immemorial  custom,  see  Reg.  v.  Rollett,  L.  R.  10  Q.  B.  469.] 

Whetiier  the  obligation  to  repair  a  highway  ratione  temtrce  must  of  neces- 
sity be  immemorial,  has  been  doubted.  But  see  R.  v..  Haynian,  Moo.  &  M. 
402 ;  and  per  Taunton,  J.,  R.  v.  Middlesex,  3  B.  &  Ad.  210.  See  the  able  argu- 
ment of  Mr.  Cresswell  on  this  subject,  in  R.  v.  Scarisbrick,  6  A.  &  E.  513, 
where  he  contends  that  the  true  rule  is  that  a  highway  is  prima  facie  pre- 
sumed to  be  immemorial ;  and  therefore  the  origin  of  obligation  must  usually 
be  so  too.  But  that  where  the  origin  of  the  road  can  be  shown,  so  may  that 
of  the  obligation ;  and  he  refers  to  Mayor  of  Lyme  Regis  v.  Henley  [3  B.  & 
Ad.  77,  1  Bing.  N.  B.  222],  to  show  that  such  an  obligation  is  capable  of  a 
modern  origin. 

The  obligation  to  repair  ratione  tenures  seems  to  be  enforceable  in  the  first 
instance  against  the  occupier,  who  is  the  only  person  known  to  the  public, 
and  who  has  his  remedy  over  against  the  owner.  Baker  v.  Greenhill,  3  Q.  B. 
148 ;  and  qncere,  whether  the  owner  of  lands  bound  to  repair  ratione  temtroi  is 
liable  to  be  indicted  as  such  though  he  be  not  in  occupation,  and  the  lands  be 
occupied  by  another;  see  R.  v.  Sntton,  3  A.  &  E.  597,  where  lands  so  charged 
with  repairs  were  occupied  by  the  guardian  in  socage  of  an  infant  eleven 
years  old,  who  had  inherited  them  :  it  was  licld  :  1.  that  the  infant  was  not 
indictable  as  oAvner  :   2.  that  the  guardian  was. 

Tiio  liability  to  repair,  whether  arising  ratione  teniira;,  or  otherwise,  is  at 


1406  DOV  ASTON     V.    J'AVNK. 

an  end  wlien  the  road  has  been  totally  destroyed  by  the  act  of  f Jod ;  as,  for 
instance,  when  it  has  been  washed  away  by  the  action  of  the  sea,  lieg.  v. 
Bamber,  5  Q.  B.  279;  Iie(j.  v.  Hornsea,  23  L.  J.  M.  C.  59;  Dearsley  C.  C.  K. 
291,  S.  C. ;  [but  see  liey.  v.  Greenhuw,  1  Q.  B.  1).  703,  as  to  what  amounts  to 
the  act  of  God.] 

If  a  road  had  been  widened,  the  mode  of  doinir  wliidi  is  now  provided  l)y 
5  &  fi  W.  4,  c.  50,  s.  82,  the  parisli  must  at  common  hiw  have  repaired  the  new 
part  thereof,  li.  v.  West  Ridimj  of  Yorksfiiit',  2  Kast,  353;  st.  4,  G.  4,  c.  95, 
s.  G8.  But  now,  wlien  a  road  is  widened,  diverted,  or  turned,  tlie  parish 
must  repair  the  wliole  :  and  means  are  provided  for  enforcing  a  rateable  con- 
tribution from  the  persons  previously  liable  to  the  reparation,  5  &  G  \V.  4, 
c.  50,  s.  93.  And  see  4  G.  4,  c.  95,  and  li.  v.  Inhahitants  of  Burton,  11  A.  &  K. 
343. 

By  sect.  02  of  the  said  act,  a  mode  is  chalked  out  of  converting  a  hi<;hway, 
repairable  by  a  corporation,  or  individual,  into  a  i)arish  highway,  and  llxing 
the  compensation  to  be  paid  l)y  tlic  party  to  Ije  relieved  from  the  onus  of 
repairing. 

3.  The  inhabitants  of  a  particular  township  witliin  a  parish,  may,  lnj  ms- 
tom,  be  bound  to  repair  the  highways  lying  williin  its  own  Ijoundary,  A',  v. 
Ecclcsfielil,  1  B.  &  A.  348;  altliough  it  is  not  proved  alUrmatively  tliat  there 
are,  or  have  been,  ancient  highways  in  the  township,  li.  v.  Bdrnoldsirirf,;  4 
Q.  B.  499;  Rrtj.  v.  AnUh'y,  3  Q.  B.  D.  255.  In  like  manner,  a  parish  may,  by 
immemorial  custom,  be  charged  with  the  repair  of  a  briilgc  instead  of  the 
county.  B.  v.  IIemlon,\  B.  &  Ad.  G28 ;  but  [prol«ibly]  not  witii  the  repairs  of 
a  highway  out  of  its  own  boundary,  R.  v.  *SV.  Giles,  5  M.  &  S.  2C0;  7?.  v. 
Machynlleth,  2  B.  &  C.  IGG;   [/.V7.  v.  Ashhy  Folnlle,  L.  R.  1  Q.  B.  213.] 

By  such  a  custom  the  township  is  placed  on  the  same  footing  as  a  parish, 
with  i-espect  to  the  highways  within  it,  whether  new  or  old,  R.  v.  Hatfield,  4 
B.  &  A.  75;  R.  v.  Eastrinyton,  5  A.  &  E.  7G5 ;  A",  v.  I/eayc,  2  Q.  B.  132;  Rey. 
V.  Ardsley,  3  Q.  B.  1).  255;  so  a  particular  tything  may  be  liable  by  custom  to 
repair  the  roads  within  it,  Rey.  v.  East  Mark,  11  Q.  B.  877.  See  5  &  G  W.  4, 
cap.  50,  sect.  5. 

See  further,  as  to  highways,  and  particularly  as  to  pleadings  relating  to 
them,  the  notes  to  R.  v.  Stouyhtun,  2  Wms.  Saund.  462:  and  as  to  bridges, 
see  stats.  22  II.  8,  cap.  5;  43  G.  3,  cap.  59,  .sect.  5;  and  5  &  6  VV.  4,  cap.  50, 
sects.  21  &  22.  [Bey.  v.  Upper  Half  Hundred  of  Chart,  L.  R.  1  C  C  R.  237; 
38  &  39  Vict.  c.  55,  s.  147;  41  &  42  Vict.  c.  77,  ss.  21,  22;  Bey.  v.  Somerset- 
shire, 38  L.  T.  452.] 

The  above  observations  havp,  to  avoid  confusion,  been  confined  to  high- 
ways over  land.  But  it  is  clear  that  the  channels  of  public  navigable  rivers 
were  always  highways.  See  Mayor  of  Colchester  v.  Brooke,  7  Q.  B.  339,  to 
which  case  the  reader  is  referred,  as  containing  much  useful  information 
upon  the  extent  of  the  rights  of  the  public  iu  navigable  tidal  rivers.  [See 
also  Atty.-Gen.  v.  Lonsdale,  L.  R.  7  Eq.  377,  38  L.  J.  Ch.  335;  Same  v.  Terry, 
L.  R.  9  Ch.  423;  Oriyinal  Hartlepool  Collieries  Co.  v.  Gihh,  5  Ch.  D.  713,46 
L.  J.  Ch.  311.  If  a  permanent  obstruction  be  placed  in  a  navigable  river,  the 
persons  entitled  to  use  the  river  as  a  highway  may  remove  it,  Eastern  Counties 
Railway  Co.  v.  Dorliny,  5  C.  B.  N.  S.  821.] 

Up  to  the  point  reached  by  the  flow  of  the  tide  the  soil  was  presumably  in 
the  crown ;  above  that  point,  whether  the  soil  at  common  law  was  in  the 
crown  or  in  the  owners  of  adjacent  lands,  was  a  point  perhaps  not  free  from 
doubt;  there  was  at  least  a  jurisdiction  in  the  crown  to  reform  and  punish 


DOVASTON    V.    PAYNE.  1407 

nuisances  therein.  It  was  therefore  at  common  law  illegal  to  erect  weirs, 
&c.,  so  as  to  obstruct  the  channel.  Those  prior  to  Edward  the  First's  reign 
are,  however,  legalised  by  the  construction  of  25  Edw.  3,  c.  4,  which  pro- 
vided for  the  destruction  of  those  levied  subsequently,  Williams  v.  Wilcox,  8 
A.  &  E.  3U.  [RdUc  v.  IVhi/te,  L.  R.  3  Q.  B.  286,  37  L.  J.  Q.  B.  105;  Leconfield 
V.  Lonsdale,  L.  K.  5  C.  P.  (557,  39  L.  J.  C.  P.  305.] 


What  is  a  highway  ?  —  A  public  highway  is  one  under  the 
control  of,  and  kept  up  by,  the  public,  and  must  either  be  estab- 
lished in  a  regular  proceeding  for  that  purpose,  or  generally 
used  by  the  public  for  twenty  years,  or  dedicated  hy  the  owner 
of  the  soil  and  accepted  by  the  proper  authorities.  See  Kennedy 
V.  Williams,  87  N.  C.  6.  "The  primary  and  fundamental  object 
of  all  public  highways  is  to  furnish  a  passage-way  for  travellers 
in  vehicles  or  on  foot,  through  the  country ; "  Kuger,  C.  J.  in 
People  V.  Squire,  107  N.  Y.  593. 

Highways  how  created.  —  First,  a  highway  may  be  created  by 
the  voluntary  act  of  the  owner  of  the  soil,  provided  such  dedi- 
cation of  land  by  its  owner  is  accepted  by  the  public,  acting 
through  its  proper  representatives.  To  establish  a  public  way 
by  act  of  the  owner,  two  circumstances  must  unite.  In  the  first 
place,  that  owner  must  clearly  dedicate  the  land  to  the  use  of 
the  wiiole  people  ;  in  the  second  place,  that  people  must  accept 
the  land  so  dedicated  to  them;  Cook  v.  Harris,  61  N.  Y.  448; 
Rozell  V.  Andrews,  103  N.  Y.  150  ;  Booraem  v.  North  Hudson 
County  Railway  Company,  39  N.  J.  Eq.  465 ;  In  re  Alley,  104 
Pa.  St.  622;  Bell  v.  City  of  Burlington,  68  Iowa  296;  Shell- 
house  V.  State,  110  Ind.  509  ;  Kennedy  v.  Williams,  87  N.  C. 
6 ;  Morse  v.  Zeize,  34  Minn.  35 ;  Hayward  v.  Manzer,  70  Cal. 
476  ;  Mayberry  v.  Standish,  56  Me.  342 ;  Parsons  v.  Trustees, 
44Ga.  529;  Scott  v.  Cheatham,  12  Heiskell  713;  Folsom  v. 
Town  of  Underbill,  36  Vt.  580 ;  McCain  v.  State,  62  Ala.  139. 

What  is  an  act  of  dedication  ?  —  It  is  ordinarily  a  question  of 
fact  whether  the  act  of  the  land-owner  constituted  a  dedication. 
The  thing  to  be  sought  after  is  whether  he  disclosed  an  appar- 
ent intention  to  devote  his  land  to  the  public  use.  What  his 
secret  intention  may  have  been  is  not  so  much  to  be  considered 
as  the  intention  he  disclosed  to  all  the  world ;  City  of  Indianap- 
olis V.  Kingsbury,  101  Ind.  200.  It  will  be  difficult,  therefore, 
if  not  impossible,  to  lay  down  any  one  rule  applicable  to  all 
cases.     Each  individual  case  will  have  to  be  decided  by  itself. 


1408  DOVASTON     V.     TAYNi:. 

taking  into  coiisidcnition  all  tlie  attendant  circumstances,  the 
condition  of  the  respective  parties,  and  liic  ads,  declarations, 
and  intentions  of  the  hmd-owner  as  nianifcslfd  l)y  his  conduct. 
For  it  is  largely  on  the  ground  of  an  esto])pel  in  pais  tliat  the 
principle  of  dedication  rests.  See  Vanatta  v.  Jones,  13  X'rooni 
501;  Cook  V.  Harris,  ()1  N.  Y.  44H ;  State  v.  Otoe  County,*) 
Nehraska  120;  City  of  Indianapolis  v.  Kingsbury,  101  Ind.  200. 
But  no  particular  formality  is  necessary  in  order  to  show  dedi- 
cation;  Morgan  v.  Chicago  cS:  Alton  H.  R.  Co.,  O(')  U.  S.  710.  It 
may  be  by  parol ;  Cook  v.  Harris,  Gl  N.  Y.  448;  Harding  v. 
Jasper,  14  Cal.  (J42 ;  Raker  v.  Pratt,  15  111.  508;  Dover  v.  Fox, 
9  H.  Monroe  200 ;  Carter  v.  Portland,  4  Oregon  330.  In  fact, 
an//  act  or  conduct  of  the  land-owner  showing  an  intention  to 
dedicate  will  be  sullieient ;  Chica<;o  r.  \Vri<dit,  48  111.  285; 
McCormick  V.  Mayor,  45  Md.  512:  Huch  r.  Rock  Islaud,  07 
U.S.  693;  Pierpoint  v.  Town  of  Ilariisville,  0  ^V.  Va.  215; 
Atkinson  v.  liell,  IS  Texas  474  :  Connehan  /'.  Fold,  0  Wiscon- 
sin 240;  Crump  r.  Mims,  lil  N.  ( '.  7t">7  ;  Livermorc  r.  Maquo- 
keta,  35  Iowa  358;  Mansur  r.  Ihiugliey,  00  Ind.  304;  Case  v. 
Favier,  12  Minn.  80;  Pencpiitc  r.  Lawrence,  11  Ohio  St.  274. 
Yet  certain  acts  of  a  land-owner  have  been  held  to  constitute  a 
strong,  if  not  conclusive,  presumption  of  an  intention  to  dedi- 
cate. Perhaps  the  most  common  case  is  that  of  one  selling  lots 
of  land  or  house  on  a  map,  a  plat  with  a  road  running  by  them, 
and  designated  as  a  street.  It  is  held  that  this  is  the  strongest 
evidence  of  dedication.  See  Matthicssen  &  Ilegeler  Zinc  Co.  v. 
City  of  La  Salle,  117  111.411;  Rathmau  v.  Norenberg,  21 
Nebraska  467;  Eastland  v.  Fogo,  66  Wisconsin  133;  Fulton  v. 
Town  of  Dover,  6  Central  Reporter  848  (Court  of  (lianceiy  of 
Delaware);  City  of  Iiulianapolis  v.  Kingsbury,  101  Ind.  200; 
III  re  Opening  of  Pearl  St.,  Ill  Pa.  St.  565;  Hawley  v.  Balti- 
more, 33  Md.  270 ;  Clark  v.  City  of  Providence,  10  R.  1.  437  ; 
Briel  v.  City  of  Natchez,  48  Miss.  423 ;  Tinges  v.  Mayor,  51  Md. 
600;  Bissell  v.  N.  Y.  C.  R.  R.  Co.,  23  N.  Y.  61.  But  see  Cent. 
Land  Co.  v.  City  of  Providence,  1  New  England  Rep.  873. 

So  a  dedication  of  land  can  be  made  subject  to  a  right  to  des- 
ignate a  portion  thereof  for  use  for  railroad  purposes,  and  when 
such  portion  has  been  devoted  to  railroad  purposes  the  public 
use  will  be  suspended  as  long  as  that  portion  is  used  for  railroad 
purposes  ;  Ayres  v.  Penn.  Ry.  Co.,  19  Vroom  44.  And  wherever 
dedication  on  a  condition,  the  condition  must  be  fulfilled  before 


DOVASTON     V.    I'AYXE.  1409 

the  dedication  becomes  operative;  Creamer  c.  McCuiie,  7  Mo. 
Ap.  91 ;  St.  Louis  v.  Meier,  77  Mo.  13 ;  Brougliner  v.  Clarks- 
burg, 15  W.  Va.  394.  But  merely  opening  a  space  or  taking 
down  a  fence  will  not  be  a  dedication  ;  Rozell  v.  Andrews,  103 
N.  Y.  150;  Bowers  v.  Suffolk  Man.  Co.,  4  Cush.  332;  People 
V.  Jones,  6  Mich.  192 ;  Barker  v.  Clark,  4  N.  H.  383  ;  Saulet  v. 
City,  10  La.  Ann.  81 ;  Cyr  v.  Madore,  73  Me.  53.  And  see,  also, 
Gowen  v.  Philadelphia  Exc.  Co.,  5  W.  &  S.  141 ;  Valentine  v. 
Boston,  22  Pick.  75;  Smith  v.  State,  3  Zab.  130;  White  v. 
Bradley,  66  Me.  254.  A  dedication  may  be  revoked  before 
acceptance  ;  Cook  v.  Harris,  61  N.  Y.  448.  But  when  accepted 
it  is  irrevocable ;  Shanklin  v.  City  of  Evansville,  55  Ind.  240 ; 
City  V.  Canavan,  42  Cal.  541. 

Who  may  dedicate  and  what  can  be  dedicated.  —  Having  con- 
sidered what  will  effect  a  dedication,  it  will  now  be  necessary 
to  consider  who  may  make  such  dedication  and  what  property 
can  be  so  dedicated.  Only  the  owner  of  the  soil  can  dedicate 
it  to  the  public ;  Kennedy  v.  Williams,  87  N.  C.  6 ;  Bangan  v. 
Mann,  59  111.  492;  Harding  v.  Town  of  Hale,  83  111.  501;  City 
of  Hannibal  v.  Draper,  36  Mo.  332 ;  McBeth  v.  Trabue,  69  Mo. 
642.  Hence  an  executor  could  not  make  a  dedication ;  Paret 
V.  Bayonne,  11  Vroom  333.  But  if  the  will  authorized  him  to 
he  might ;  Kaime  v.  Harty,  73  Mo.  316.  Nor  could  a  mortgagor 
unless  the  mortgagee  assented;  Hoole  v.  Attorney  General,  22 
Ala.  190.  A  corporation  may  make  a  dedication ;  Williams  v. 
N.  Y.  &  N.  H.  R.  Pt.  Co.,  39  Conn.  509 ;  Story  v.  N.  Y.  E.  Co. 
R.  R.,  90  N.  Y.  at  p.  145.  But  a  mere  occupier  of  government 
lands  cannot ;  Smith  v.  Smith,  34  Kan.  293 ;  Gentleman  v. 
Soule,  32  111,  271.  Nor  a  person  under  a  disability;  State  v. 
O'Laughlin,  19  Kansas  504.  A  trustee  may  dedicate  in  accord- 
ance with  the  trust ;  Prudden  v.  Lindsley,  29  N.  J.  Eq.  615. 

The  fact"  that  the  way  is  not  open  at  both  ends  will  not  pre- 
vent it  from  being  capable  of  dedication.  A  cul  de  sac  may 
become  a  highway ;  People  v.  Kingman,  24  N.  Y.  559  (over- 
ruling Holdane  v.  Cold  Spring,  23  Barbour  103)  ;  People  v.  Jack- 
son, 7  Mich.  451;  Sheaff  v.  People,  87  111.  189;  Yandemark  v. 
Porter,  40  Hun  397 ;  Bartlett  v.  Bangor,  67  Me.  460 ;  State  v. 
Bishop,  39  N.J.  226;  Schatz  v.  Pfeil,  56  Wis.  429.  Land 
may  be  dedicated  for  public  squares ;  Abbott  v.  Cottage  City, 
143  jMass.  521 ;  Methodist  Episcopal  Church  v.  Hoboken,  4 
Vroom  13 ;  Rowan  v.  Portland,  8  B.  Mon.  232 ;  Princeville  v. 


1410  DO  V  ASTON    V.     I'AVXK. 

Aiiteii,  77  III.  325 ;  Mowry  v.  City  of  Providence,  10  R.  I.  52. 
A  dedication  must  be  to  all  the  public ;  Mowry  v.  City  of  Prov- 
idence, 10  R.  I.  52;  Tupper  v.  Hudson,  4G  Wis.  G40  ;  Trerice 
V.  Barteau,  54  Wis.  99. 

What  is  acceptance  by  the  public?  —  In  considering  the  other 
branch  of  the  question,  it  will  again  a[)pear  that  it  is  mainly  a 
question  of  fact  whether  the  dedication  by  the  land-owner  was 
followed  by  that  acceptance  on  the  part  of  the  public  wliich  it 
has  been  seen  is  necessary  to  constitute  the  land  a  highway. 
Here,  too,  each  case  must  be  determined  by  its  own  circum- 
stances. As  land  need  not  be  dedicated  ])y  its  owner  in  any 
particular  manner,  so  the  acceptance  need  not  be  proved  by  any 
one  act.  Still,  it  is  somewhat  easier  to  specify  what  will  be  an 
acceptance  than  what  a  dedication.  There  are  certain  acts  so 
clear  and  unequivocal  as  to  leave  no  doubt  of  an  acceptance, — 
the  expenditure  of  money  on  a  road,  paving  it,  repairing  it,  and 
all  such  acts,  the  proper  municipal  authorities  indicating  that 
they  have  assumed  control  of  the  land,  are  unmistakable  evi- 
dence of  acceptance  by  the  public  ;  State  v.  Kisele,  3-3  N..  W. 
Reporter,  785  ;  People  v.  Loehfelm,  102  N.  Y.  1  ;  Ross  v.  Thomp- 
son, 78  Ind.  90;  Parsons  v.  Trustees,  44  Ga.  529,  It  is  from 
the  very  fact  that  this  liability  of  a  town  to  repair  the  highways 
attaches  that  clear  evidence  of  acceptance  is  necessary  ;  Bowers 
V.  Suffolk  Man.  Co.,  4  Cush.  333  ;  Hyde  v.  Jamaica,  27  Vt.  443. 
So,  too,  a  long  continued  use  of  the  road  by  the  public  will  be 
sufficient  evidence  of  acceptance ;  indeed,  this  long  continued 
use  with  the  knowledge  of  the  land-owner  would  be  strong 
evidence  of  the  dedication  as  well  as  the  acceptance ;  Ely  v. 
Parsons,  55  Conn.  83 ;  Veale  v.  City  of  Boston,  135  Mass.  187 ; 
Brakken  v.  Minneapolis  Ry.  Co.,  29  Minn.  41  ;  People  v.  Blake, 
60  Cal.  497  ;  People  v.  Loehfelm,  102  N.  Y.  1 ;  Carr  v.  Kolb,  99 
Ind.  53 ;  Cora,  of  Pa.  v.  Moorehead,  10  Central  Rep.  Oil ; 
Kinnare  v.  Gregory,  55  Miss.  612;  City  v.  Canavan,  42  Cal.  541  ; 
Buchanan  v.  Curtis,  25  Wis.  99;  Ross  v.  Thompson,  78  Ind.  90. 
But  see  Peyton  v.  Shaw,  15  111.  Appeals  192,  where  twenty-years 
user  was  held  not  conclusive  evidence  of  dedication. 

Abandonment  of  highways.  —  A  public  highway  may  be  given 
up  and  lost  by  discontinuance.  To  decide  whether  there  has 
been  an  abandonment,  we  must  consider  all  the  facts  and  all 
the  action  of  the  public.  The  public  may,  of  course,  release 
their  easement  to  travel  over  another's  land  and  in  such  case  the 


DO V ASTON    Y.    PAYNE.  1411 

land  will  revert  to  the  abuttino-  owner  unless  he  claims  throuQ-h 
one  wlio  has  clearly  reserved  the  ownership  of  the  fee  in  him- 
self. Adopting  one  road  to  travel  on  and  ceasing  for  a  long 
time  to  use  another  may  operate  as  a  discontinuance;  Shelby 
V.  State,  10  Hump.  165 ;  Grube  v.  Nichols,  36  111.  92 ;  Railroad. 
V.  O'Conner,  37  Ind.  95 ;  Webber  v.  Chapman,  42  N.  H.  326. 
But  until  the  road  is  actually  needed  for  use,  non-user  will  not 
show  a  discontinuance ;  State  v.  Leaver,  62  Wis.  387 ;  Reilly 
V.  City  of  Racine,  51  Wis.  526.  So  if  the  road  has  been  fenced 
up  and  improved  by  the  owner  of  the  land  for  over  twenty 
years,  it  will  be  evidence  of  abandonment ;  Holt  v.  Sargent,  15 
Gray  97.  But  the  city  cannot  abandon  a  part  of  a  street  for 
twenty  years,  allow  the  adjoining  owner  to  use  it  for  that  time, 
then  provide  it  shall  revert  to  the  city ;  Glasgow  v.  City  of  St. 
Louis,  87  Mo.  678.  As  a  result  of  the  doctrine  that  the  high- 
way belongs  to  the  abutting  owners,  subject  to  the  public  use 
of  it  for  the  ordinary  purposes  of  a  highway,  comes  the  other 
rule  of  law  established  in  a  larger  part  of  the  states  that  a  con- 
veyance of  land  having  as  one  of  its  bounds  "  to  a  street,"  "  to 
the  highway,"  or  some  equivalent  term,  will  convey  the  fee 
to  the  centre  of  the  street,  unless  the  language  of  the  de- 
scription is  so  qualified  as  to  show  clearly  that  the  soil  of  the 
highway  is  reserved  from  the  grant  by  the  grantor ;  Mat- 
thiessen  &  Hegeler  Zinc  Co.  v.  City  of  La  Salle,  117  111. 
411;  City  of  Indianapolis  ik  Kingsbury,  101  Ind.  200;  Bliss 
V.  Ball,  99  Mass.  597;  Palmer  v.  Dougherty,  33  Me.  507; 
Peck  V.  Denniston,  121  Mass.  17 ;  Kings  County  Fire  Insur- 
ance Co.  V.  Stevens,  87  N.  Y.  287,  when  Andrews,  C.  J., 
says,  "It  is  generally  conceded  that  a  grantor  of  land  abut- 
ting on  a  highway  may  reserve  the  highway  from  his  grant. 
But  the  presumption  in  every  case  is  that  the  grantor  did 
not  intend  to  retain  the  highway,  and  such  reservation  will 
not  be  adjudged,  except  when  it  clearly  appears  from  the 
language  of  the  conveyance  that  such  reservation  was  in- 
tended;" Hamlin  y.  Pairpoint  Mass.  Co.,  141  Mass.  51;  He- 
gar  V.  Chicago  &  N.  W.  R.  R.,  26  Wis.  624 ;  Paul  v.  Carver, 
26  Pa.  St.  223 ;  Spackman  v.  Steidel,  88  Pa.  St.  453 ;  Nich- 
ols V.  Suncook  Man.  Co.,  34  N.  H.  345;  Witter  v.  Harvey, 
1  McCord,  67  ;  Chatham  v.  Brainerd,  11  Conn.  69 ;  Champlin 
V.  Pendleton,  13  Conn.  23;  Johnson  v.  Anderson,  18  Me.  76; 
Adams  v.  Saratoga  &  Washington  Railroad  Co.,  11  Barbour 


1412  DOVASTON  V.   pavkp:. 

414 ;  Florida  Southern  Ky.  Co.  v.  Brown,  1  Southern  Reporter, 
512;  Rich  f.  City  of  Minneapolis,  35  N.  W.  Rep.  2.  Yet  the 
grantor  can  reserve  the  soil  of  the  highway  to  himself  by  using 
clear  language.  What  will  amount  to  such  a  reservation  is  a 
(jucstion  of  some  dilliculty  and  there  is  a  diversity  in  the  decis- 
ions of  the  different  states.  In  Massachusetts  and  in  New 
York  the  presumption  of  title  extending  to  the  centre  of  the 
street  seems  to  be  one  more  easily  iel>utte(l  than  in  the  other 
states.  By  legislation  the  fee  of  the  soil  in  almost  all  the 
streets  in  New  York  city  is  vested  in  the  city.  In  Knglish  v. 
Brennan,  GO  N.  Y.  000,  it  is  stated  that  the  presumption  that 
the  grantor  intended  to  convey  his  intiMi'st  in  the  street  is 
much  less  strong  in  large  cities.  In  Munn  v.  Worrall,  5^1  N.  Y. 
44,  an  exception  "saving  and  excepting  from  the  prenuses 
hereby  conveyed  all  and  so  much  and  such  part  and  parts 
thereof  as  has  or  have  been  lawfully  taken  for  a  public  road  or 
roads"  was  held  sulhcient  to  rebut  the  presumjition  of  a  con- 
veyance of  the  fee.  In  Kings  Co.  Fire  Ins.  Co.  v.  Stevens,  S7 
N.  Y.  2S7,  where  tlu'  description  was  beginning  at  a  jioint  on 
the  southerly  side  of  road  running  thence  southerly,  thence 
westerly,  thence  northerly  to  the  road,  thence  along  said  road 
to  the  point  or  place  of  beginning,  it  was  held  thai  the  grant 
was  bounded  by  the  southerly  side  (»f  the  road  and  did  not 
extend  to  the  centre  of  the  highway.  Yet  in  Vail  v.  Long 
Island  R.  R.  Co.,  100  N.  Y.  283,  where  land  was  conveyed  to  a 
town  with  the  usual  covenants  of  warranty  "to  be  used  as 
a  highway,  with  all  the  jjrivileges  thereto  belonging,  for  such 
purpose  only,  with  the  appurtenances  and  all  the  estate,  title, 
and  interest  of  the  said  parties  of  the  first  part  therein,"  it  was 
held  that  the  deed  conveyed  the  fee  of  the  land  and  not  the 
easement  merely.  In  Hamlin  v.  Fairpoint  Man.  Co.,  141  Mass. 
51,  a  description  "  to  the  land  of  Howland  street  and  thence 
easterly  in  line  with  said  street "  was  held  not  to  convey  to  the 
centre  of  the  street.  In  Sibley  v.  Ilolden,  10  Bickering  240,  a 
description  beginning  at  a  stake  on  the  southerly  side  of  a 
road,  thence  to  said  road,  thence  by  said  road  easterly, 
was  held  to  exclude  the  highway.  In  Smith  v.  Slocomb,  0 
Gray  30,  a  similar  description  was  held  to  exclude  the  high- 
way. For  other  cases  where  the  description  was  held  to  rebut 
the  presumption  of  an  intent  to  carry  title  to  the  centre  of  the 
highway,  see  Baltimore  &  Ohio  R.  R.  Co.  v.  Gould,  7  Central 


DOVASTON^    V.    PAYNE.  1413 

Reporter  379  (Court  of  Appeals  of  Maryland);  Jackson  v. 
Hathaway,  15  Johns.  447 ;  Wetmore  v.  Law,  34  Barber  621 ; 
Sunderland  v.  Jackson,  32  Me.  83 ;  White's  Bank  of  Buffalo  v. 
Nichols,  64  N.  Y.  65 ;  City  of  Chicago  v.  Rumsey,  87  111.  348 ; 
Hughes  V.  Providence  &  Worcester  R.  R.,  2  R.  I.  508 ;  Higbee 
V.  C.  &  A.  R.  R.,  19  N.  J.  Eq.  276 ;  Wellman  v.  Dickey,  1  New 
Eng.  Rep.  342  (Supreme  Court  of  Maine). 

Ownership  of  soil  of  highway.  —  Oidinaril}^  the  soil  of  the 
highway  belongs  to  the  abutting  property.  The  interest  which 
the  public  has  in  the  highway  is  a  right  of  way  on  land  of 
another  for  public  travel  while  the  abutting  property  owner 
still  retains  his  proprietorship  of  the  soil,  subject,  hoAvever,  to 
the  right  of  the  public  to  its  undisturbed  use  in  such  manner 
as  public  streets  are  usually  used.  For  authorities  holding 
that  the  ownership  of  the  fee  of  the  soil  in  a  highway  remains 
in  the  owner  of  the  land,  see  Town  of  Winchester  v.  Capron, 
63  N.  H.  605;  Robert  v.  Sadler,  104  N.  Y.  229;  Pittsburgh 
Railway  Co.  v.  Commonwealth,  104  Pa.  St.  583 ;  Webber  v. 
Eastern  Railway  Co.,  2  Metcalf  147 ;  Tucker  v.  Eldred,  6  R.  I. 
404 ;  Woodruff  v.  Neal,  28  Conn.  165 ;  Town  of  Old  Town  v. 
Dooley,  81  111.  255  (where  the  right  to  get  water  from  springs 
flowing  along  the  highway  was  denied). 

It  would,  of  course,  be  competent  for  the  municipal  authori- 
ties to  take  the  fee  of  the  land,  as  well  as  an  easement  over  it 
if  they  so  elected.  But  in  order  to  rebut  the  presumption  that 
an  easement  merely  was  taken,  strong  and  conclusive  evidence 
would  be  required.  In  New  York  city  in  almost  all  the  streets 
the  city  does  own  the  fee,  but  the  act  authorizing  them  to  take 
such  fee  expressly  provides  that  they  shall  hold  the  same  in 
trust  to  keep  the  streets  open  as  streets. 

The  interest  the  public  has  in  a  highway.  —  Highways  are 
designed  to  facilitate  travel  to  and  fro,  and  communication 
between  different  points.  For  this  purpose,  and  for  this  pur- 
pose only,  are  they  constructed  and  operated.  It  has  been  seen 
that  the  ownership  of  the  soil  is,  except  in  special  cases,  in  the 
abutting  owner.  Hence,  subject  to  this  easement  of  the  public, 
the  land  in  the  highway  is  his.  The  late  decision  of  the  Court 
of  Appeals,  of  New  York,  in  Robert  v.  Sadler,  104  N.  Y.  229, 
brings  out  clearly  this  right  of  ownership  of  the  abutting  owner 
and  is  valuable  in  reviewing  the  authorities.  It  was  a  case 
where  pits  were  dug  in  the  sidewalk  to  obtain  gravel  to  fill  up 


1414  DOVASTON    V.     I'AVNK. 

the  roadway.  In  other  words,  gravel  of  the  owner  was  taken, 
to  be  replaeed  by  poorer  and  eheajjcr  gravel.  The  eonrt  held 
this  a  trespass  and  vigorously  upheld  the  right  of  the  adjoining 
owner. 

Horse  railroads  and  steam  railroads. —  With  the  introduction 
of  horse  railroads  a  new  and  important  question  came  before 
the  state  courts.  Were  the  publii:  authorities  justified  in  grant- 
ing to  privat(!  corporations  the  right  to  use  the  streets  for  their 
railroad?  The  land-owner  whose  property  had  been  taken  in 
invitum  for  the  purposes  of  a  highway  iiad  been  duly  (•oMi[)en- 
sated.  But  did  such  eonipensation  havi;  in  contemplation  such 
a  new  and  novel  use  of  the  highways  as  this?  With  general 
unanimity  it  has  been  decided  that  a  horse  railroad  is  but  a 
legitimate  use  of  the  highway;  Ilinchman  /'.  Paterson  Horse 
R.  R.  Co.,  17  N.  J.  Eq.  75;  Elliot  v.  Fair  Haven  .^  Westville 
li.  Iv.  Co.,  32  Conn.  570;  Attorney-General  /•.  Metropolitan 
R.  R.,  125  Mass.  515;  Market  St.  R.  R.  Co.  i-.  Central  Railway, 
51  Cal.  583;  Ohio  Street  Railway  v.  CumminsviUe,  14  ().  St. 
523 ;  Briggs  v.  Lewiston  ik,  Auburn  Horse  R.  R.  Co.,  4  New 
England  Reporter  546  (Supreme  Court  of  Maiiu-)  in  which  case 
the  fact  that  the  cars  were  to  be  run  l)y  electric  motor  was  held 
to  make  no  difterence.  A  New  Yoik  ease  lays  down  a  contrary 
ruling;  Craig  v.  Rochester  City  &  Brighton  R.  R.  Co.,  3*.>  X.  Y. 
404.  The  court  say,  "The  use  of  a  railroad  no  matter  how 
operated,  whether  by  horse  or  steam  power,  necessarily  includes 
to  a  certain  extent  an  exclusive  occupation  of  a  portion  of  the 
highway  and  a  permanent  occupation  of  the  soil."  Vet  the 
same  court  soon  afterwards  held  in  Kellinger  v.  Forty -second 
Street  &  Grand  St.  Ferry  R.  R.  Co.,  50  N.  Y.  206,  that  where 
the  city  owned  the  fee  of  the  soil  the  abutting  property  owner 
was  not  damaged.  See,  also,  Mahady  v.  Bushwick  R.  R.,  91  N.  Y. 
148 ;  and  People  v.  Kerr,  27  N.  Y.  188. 

A  steam  railroad  is  generally  regarded  as  a  use  of  tlie  high- 
way not  within  the  contemplation  of  the  parties  when  the  land 
was  taken,  and  so  not  a  legitimate  use  of  the  highway.  The 
New  York  courts  have  uniformly  laid  down  the  doctrine  that 
to  permit  a  railroad  operated  by  steam  to  use  the  highway  is  to 
impose  on  the  land  a  new  and  additional  burden  to  the  ease- 
ment of  the  public,  and  entitles  the  land-owner  to  additional 
compensation  ;  Williams  v.  N.  Y.  Cent.  R.  R.,  16  N.  Y.  97 ; 
Henderson  v.  N.  Y".  Cent.  R.  R.,  78  N.  Y.  423 ;  Uline  v.  N.  Y^  C. 


DOVASTON    V.    PAYXE.  1415 

&  H.  R.  R.  Co.,  101  X.  Y.  98;  where  Earl,  J.,  says:  "If  the 
railroad  be  built  upon  or  over  a  highway  the  public  right  or 
license  must  be  obtained  not  only,  but  so  far  as  individuals' 
own  private  lights  or  interests  in  the  highway  or  the  soil 
^hereof,  they  must  also  be  lawfully  acquired ;  ...  as  to  them 
and  their  rights  the  railroad  is  unlawful,  a  continuing  nuisance 
which  they  can  cause  to  be  abated."  In  his  dissenting  opinion 
in  Pierce  v.  Drew,  136  Mass.  75,  Mr.  Justice  C.  Allen  says  that 
in  Massachusetts  it  is  an  open  question  whether  a  railroad  could 
be  laid  on  the  highway  without  indemnifying  the  owner  of  the  fee. 

In  accord  with  the  New  York  decisions  are  Grand  Rapids  & 
Indiana  R.  R.  Co.  v.  Heisel,  38  Mich.  62 ;  Stanley  v.  City  of 
Davenport,  6  N.  W.  Rep.  706 ;  Hegar  v.  Chicago  &  N.  W. 
R.  R.,  26  Wis.  624  ;  I.  B.  &  W.  R.  R.  Co.  v.  Hartley,  67  111.  439 ; 
Kaiser  v.  St.  Paul,  S.  &  T.  Falls  R.  R.  Co.,  22  Minn.  149  ;  Kuche- 
man  v.  C.  C.  &  D.  R'y-  Co.,  46  Iowa  366,  a  case  containing  a 
valuable  review  of  the  authorities.  C.  G.  &  B.  R.  R.  Co.  v. 
Renfroe,  58  Mo.  265. 

Opposed  to  the  New  York  cases  are  Brainard  v.  The  Missisquoi 
R.  R.  Co.,  48  Yt.  107 ;  Colorado  Cent.  R.  R.  Co.  v.  Mollandin,  4 
Colorado  154.  See,  also,  the  elaborate  opinion  of  E.  Rediield, 
C.  J.,  in  Hatch  v.  Vermont  Cent.  R.  R.  Co.,  25  Vt.  59.  And  for 
a  general  collection  of  the  authorities,  see  Pierce  on  Railroads, 
pp.  232  to  242. 

Elevated  railroads,  underground  roads,  telegraph  poles,  gas  pipes. 
—  We  are  confined  to  the  jurisprudence  of  one  state  for  all  our 
law  on  the  subject  of  elevated  railroads ;  but  the  decisions  in 
New  York  were  so  cautiously  and  carefuU}-  considered  that 
the}'  will  doubtless  obtain  in  other  jurisdictions  when  similar 
roads  are  constructed  there.  By  Story  v.  N.  Y^.  Elevated  Rail- 
road Company,  90  N.  Y.  122,  it  was  established  that  the  erection 
of  an  elevated  railroad  fifteen  feet  above  the  surface  of  the 
street,  supported  upon  columns  placed  along  the  outer  edge  of 
the  sidewalks,  was  destructive  of  the  use  of  the  street  as  such, 
and  would  violate  the  state  constitution,  unless  compensation 
was  made  to  plaintiff  for  his  property  thus  taken.  See  opinion 
of  Danforth,  J.,  at  p.  161 :  "  The  public  purpose  of  a  street  re- 
quires of  the  soil  the  surface  only.  Very  ancient  usage  permits 
the  introduction  under  it  of  sewers  and  water  pipes,  and  upon 
it  posts  for  lamps.  Of  these  things  an  abutting  OAvner  could 
not  complain,  but  he  is  not  required  to  hold  his  peace  in  the 


1410  UOVASTON    V.    I'AYNK. 

presence  oi  siu-h  an  iTL-clioii  as  is  tlueateiicd  \>y  tlu-  defeudaiit." 
The  case  of  Lahr  v.  The  Metiopolitaii  Elevated  Uaihvay  Com- 
pany, 104  N.  V.  208,  while  lealliiininy^  the  principle  of  law  laid 
down  by  the  majority  of  the  court  in  the  Story  case,  also  settles 
definitely  that  it  does  not  affect  the  right  of  the  abutting  owner 
to  recover  daniao-es  that  he  owns  oidy  an  easement  in  the  street, 
not  the  fee.  As  to  whether  abutting  owners  on  streets,  not 
opened  under  the  Act  of  1813,  where  the  city  owns  the  fee,  can 
similarly  recover  damages  or  maintain  an  action  for  an  injunc- 
tion, there  can  be  little  doubt,  if  the  point  is  ever  seriously 
urged  as  a  defence  by  the  elevated  railroad  companies,  that  the 
principle  laid  down  in  the  two  ciuses  cited  will  be  followed,  and 
all  abutting  pro})erty  owners  })e  allowed  a  remedy  provided  they 
can  show  any  injury  to  their  property.  lint  it  must  still  be 
regarded  as  an  open  question  whether  an  abutting  owner  ean 
recover  for  injury  to  his  {)roperty  due  to  noise.  Two  courts  of 
etjual  standing  have  reaehed  oftposite  conclusions  on  this  point, 
and,  until  settled  1)\  the  eonil  of  last  resort,  tlie  matti-r  nnist 
remain  a  mooted  one.  See  Peyser  v.  Metropolitan  I'.levated 
Railway  Co.,  13  Daly  12:^,  where  noise  was  held  to  be  but  an 
ordinary  use  of  the  street ;  Taylor  v.  Metropolitan  Elevated 
Ry.  Co.,  55  N.  Y.  Su[)erior  555,  allows  a  recovery. 

The  New  York  Court  of  Appeals  has  very  recently  rendered 
a  decision  l)y  which  it  would  appear  that  the  construction  of  an 
luiderground  railway  may  be  a  violation  of  the  rights  of  an 
abutting  pro})erty-owner  in  the  Matter  of  N.  Y.  District  Ry. 
Co.,  107  N.  Y.  42. 

Telephone  poles.  —  There  is  great  diversity  in  the  few  decis- 
ions on  the  (piestion  whether  a  telephone  company  can  be 
given  the  right  to  use  the  highway  for  the  erection  of  its  poles 
without  compensating  the  adjoining  property  owners.  In  Pierce 
V.  Drew,  136  Mass.  75,  the  matter  is  elaborately  discussed,  and 
the  majority  of  the  court  say  that  this  would  not  be  the  imposi- 
tion of  a  new  burden  on  the  land  already  taken  for  the  use  of  the 
public.  Two  judges  dissent  in  a  strong  and  carefully  consid- 
ered opinion.  In  accord  with  Pierce  v.  Drew  are  the  cases,  Julia 
Building  Association  v.  Bell  Telephone  Company,  13  Mo.  App. 
477;  and  in  Dusenbury  v.  Mutual  Telegraph  Co.,  11  Abb.  N,  C. 
440 ;  and  Tiffany  v.  The  U.  S.  Illuminating  Co.,  67  How.  Pr.  73, 
special  term  decisions  of  two  New  York  courts  have  denied  this 
right,  and  this  is  more  noticeable  because  in  one,  at  least,  of  the 


DOVASTON    V.    PAYNE.  1417 

cases  the  abutting  property  owner  did  not  own  the  fee  of  the 
street.  Board  of  Trade  Telegraph  Co.  v.  Barnett,  107  111.  507, 
decides  that  the  abutting  property  owner  must  be  compensated 
where  he  owns  the  fee  of  the  street. 

The  municipal  authorities  have  the  right  to  authorize  gas  com- 
panies to  lay  their  pipes  in  the  soil  of  the  highway,  and  to  lay 
water  pipes  and  to  build  sewers  ;  Commonwealth  v.  Lowell  Gas 
Light  Co.,  12  Allen  75,  where  Bigelow,  C.  J.,  says:  "The  right 
Avhich  the  defendants  have  is  only  to  use  land,  the  whole  bene- 
fit of  which  has  been  previously  taken  from  the  owner  and 
appropriated  for  a  public  use,  in  such  manner  that  no  nuisance 
shall  be  committed,  no  disturbance  be  created  in  the  easement 
of  the  public,  and  no  injury  done  to  abutting  owners  of  private 
property."  See,  also,  Traphagen  v.  Mayor,  etc.,  of  Jersey  City, 
29  N.  J.  Eq.  206  ;  Cone  v.  City  of  Hartford,  28  Conn.  363 ;  Mil- 
hau  V.  Sharp,  15  Barbour,  remarks  of  Edward,  P.  J.,  at  p.  210 : 
"  No  one  has  ever  seriously  questioned  the  right  of  the  city  to 
authorize  their  use  for  such  purpose ; "  yet  in  Bloomfield  Gas 
Light  Co.  V.  Calkins,  62  N.  Y.  386,  it  has  been  decided  that  in  a 
country  town  tliere  would  be  a  right  of  compensation. 

Various  other  obstructions  to  the  highway.  —  The  use  of  the 
highway,  by  both  the  public  and  abutting  property  owners,  must 
be  a  reasonable  use  with  due  regard  to  the  rights  of  all  parties. 
As  highways  are  established  for  public  travel  and  convenience, 
the  public  enjoyment  of  them  is  strictly  limited  to  their  legiti- 
mate purpose.  On  the  other  hand,  the  owner  of  property  on 
the  highway  owes  correlative  duties  to  the  public.  As  he  is 
entitled  to  be  protected  against  obstructions  on  the  highway  by 
the  public,  and  against  the  public  appropriating  to  itself  any 
part  of  the  highway,  so  the  public,  too,  is  to  be  protected  in  a 
reasonable  use  of  tlie  highway  devoted  to  them.  What  is  an 
obstruction  to  the  highway  must  largely  depend  on  the  circum- 
stances of  each  individual  case  arising,  on  the  question  whether 
considering  the  localit}-  and  the  public  need  the  use  is  a  fair  and 
legitimate  use  by  the  public  of  their  easement,  or  whether  the 
use  of  his  property  by  the  adjoining  owners  has  a  due  regard  for 
the  rights  of  the  public. 

In  Callanan  v.  Gilman,  107  N.  Y.  360,  a  tradesman  was  in  the 
habit  of  using  a  bridge  to  convey  goods  from  his  store  to  the 
street,  and  the  sidewalk  would  be  obstructed  from  four  to  five 
hours  of  each  business  day.    It  was  held  that  this  was  an  unrea- 


1418  DOVASTON     V.     rAYNE, 

sonable  use  of  the  sidewulk  uiul  eoustituted  ;i  iiuisaiiee.  In 
Elias  V.  Sutlierlanil,  18  Abl).  X.  ('.  126,  it  was  lield  an  unreason- 
able use  of  their  premises  for  the  "Seven  Sntlieiland  Sisters" 
to  use  the  bay  window  of  their  store  on  a  busy,  bustling  street 
in  New  York  City,  foi-  eonibing  their  long  hair  in  full  view  so 
as  to  collect  great  crowds  in  front  of  their  premises  and  interfere 
with  travel  on  the  higliway.  In  Bianaliaii  v.  Hotel  Co.,  30  Ohio 
St.  333,  it  was  held  that  the  defendant  luid  no  liglit  to  use  the 
street  fronting  on  plaintiff's  premises  l)y  keeping  coaches  there 
so  as  to  interfere  with  his  house.  See,  also,  McCaffiey  r.  Smith, 
41  Hun  117,  and  Turner  r.  Iloltzman,  54  Md.  14<S ;  In  .Iae(jues 
V.  National  Exhibit  Co.,  15  Abb.  N.  C.  250,  it  was  held  unlawful 
to  exhibit  comic  pictures  in  a  second  story  window  so  as  to 
attract  a  great  crowd  on  the  opposite  side  of  the  street,  and 
interfere  with  jjlaintiffs'  business.  Nor  can  the  highway  be  used 
for  pasturing;  Stackpole  r.  llealy,  1(5  Mass.  33;  Parker  r.  Jones, 
1  Alk'u  270:   P.aldwiii  r.  Knsign,  4'.>  Conn.  113. 

Any  perniaiient  obstruction  cannot  be  erected  in  the  highway. — 
W'hat  is  such  an  obsti  lutinu  is  a  ([UcstidU  of  fact.  A  woik  of 
art  maybe  erected  in  a  highway  if  it  docs  not  obstruct  travel; 
Tompkins  v.  Hodgson,  2  Hun  14i»  ;  a  watch-house  cannot, 
Town  of  Wincliester  v.  Ca[)ron,  ('•-)  N.  H.  <>()">;  nor  caii  weigh 
scales,  Huddleston  r.  Ivillbueh,  7  Athmtic  Reporter,  210 
(Supreme  Court  of  Pa.).  A  scaffold  may  be  temporarily 
erected  for  the  repair  of  a  building;  Hexamer  r.  Webb,  101 
N.  Y.  377  ;  State  v.  Holman,  21>  Ark.  58.  And  see  on  kindred 
points,  Chamberlain  v.  Enfield,  43  N.  H.  350 ;  and  Mallory  v. 
Griffey,  85  Pa.  St.  275.  A  liberty  pole  is  lawful ;  City  of 
Allegheny  v.  Zimmerman,  95  Pa.  St.  287.  See,  also.  Graves  v. 
Shattuck,  35  N.  H.  257.  For  a  case  of  moving  a  building 
through  the  highway ;  Welsh  v.  Wilson,  101  N.  Y.  254.  For  a 
case  of  use  of  skid  to  bring  goods  to  one's  store,  and  for  a  later 
skid  case,  see  Jochera  v.  Robinson,  06  Wis.  638. 

Rivers.  —  The  law  as  to  rivers  both  above  and  below  the  flow 
of  the  tide  is  the  same  as  that  of  a  highway,  so  far  as  the  ease- 
ment of  passing  of  the  public  is  concerned ;  Chalker  v.  Dickin- 
son, 1  Conn.  382 ;  so  far  as  relates  to  the  ownership  of  the  soil 
is  concerned,  other  principles  come  in.  In  rivers  where  the 
tide  ebbs  and  flows,  the  adjoining  owaier  can  claim  only  to  low 
Avater  mark,  all  beyond  that  belongs  to  the  public ;  Hart  v. 
Hill,  1  Whart.  124;  Ball  v.  Slack,   2  Id.  508;  Dillingham  v. 


DOY  ASTON     V.    PAYNE.  1419 

Roberts,  75  Me.  469;  Home  v.  Richards,  4  Coll.  441;  Mead 
V.  Ilayiies,  3  Raiid.  33 ;  Arnold  v.  Mundy,  1  Halst.  1 ;  Ashby  v. 
Eastern  R.  R.  Co.,  5  Met.  3G8 ;  Jones  v.  Janney,  8  W.  &  S.  436 ; 
Bickel  V.  Polk,  5  Harr.  325;  Musser  v.  Hersliey,  42  la.  356. 
As  to  the  ownership  beyond  low  water  mark,  see  State  v. 
Pacific  Guano  Co.,  22  S.  C.  50 ;  State  v.  Pinckney,  22  Id.  484 ; 
Goodwin  v.  Thompson,  15  Lea  209 ;  Naglee  v.  Ingersoil,  7  Pa. 
St.  185 ;  Chapman  v.  Kimball,  9  Conn.  38.  In  California  high 
water  mark  is  made  the  dividing  line,  leaving  the  land  between 
high  and  low  water  mark  in  the  public ;  Long  Beach  Land  & 
Water  Co.  v.  Richardson,  70  Cal.  206.  In  Iowa  the  same  rule 
seems  to  hold ;  Houghton  v.  C.  D.  &  M.  R.  R.  Co.,  47  la.  370. 
In  Missouri  the  ownership  extends  only  to  the  water's  edge ; 
Meyers  v.  City  of  St.  Louis,  8  Mo.  Ap.  266.  Low  water  mark 
is  strictly  the  dividhig  line  in  the  other  states ;  McCuUock  v. 
Aten,  2  Hamm.  308 ;  Garner's  Case,  3  Graft.  655 ;  Handly  v. 
Anthony,  5  Wheat.  375 ;  Litchfield  v.  Scituate,  136  Mass.  39. 
See  Gough  v.  Bell,  1  Zab.  156 ;  2  Zab.  441.  If  the  owner 
extend  his  structure  beyond  this  mark  he  is  guilty  of  a 
purpresture  which  may  be  abated  as  a  nuisance ;  East  Haven  v. 
Hemingway,  7  Conn.  186.  See  Union  Depot  Street  R.  R.  Co. 
V.  Brunswick,  31  Minn.  297 ;  and  Sisson  v.  Cummings,  35  Hun 
22 ;  Gifford  v.  McArthur,  55  Mich.  535 ;  Larson  v.  Furlong,  63 
Wis.  323.  The  owner  can  prevent  any  obstruction  being  placed 
between  his  land  and  the  navigable  way ;  Shirley  v.  Bishop,  67 
Cal.  543 ;  Hamlin  v.  Pairpoint  Mfg.  Co.,  141  Mass.  51. 

Above  the  flow  of  the  tide  different  rules  apply,  tlie  public 
still  has  the  right  of  passage,  but  no  right  to  fish,  nor  to  claim 
the  soil  that  Ijelongs  up  to  the  middle  of  the  stream  to  the  abut- 
ting owners  ;  People  V.  Piatt,  17  Johns.  195;  Hooker  v.  Cum- 
mings, 20  Id.  90  ;  Browne  v.  Kennedy,  5  Harr.  &  J.  195 ;  Comm. 
Canal  Fund  v.  Kempshall,  26  Wend.  404 ;  Munson  v.  Hunger- 
ford,  6  Barb.  265  ;  Gavit  v.  Chambers,  3  Hamm.  496 ;  Mariner 
V.  Schulte,  13  Wis.  692 ;  Canal  Trustees  v.  Haven,  5  Gilm.  548 ; 
Morgan  v.  Reading,  3  Sm.  &  M.  366.  As  to  right  of  passage, 
see  Adams  v.  Pease,  2  Conn.  481 ;  Berry  v.  Carle,  3  Greenl. 
269 ;  McCullough  v.  Wall,  4  Rich.  69 ;  Moor  v.  Veazie,  31  Me. 
361;  Warren  v.  Thomaston,  75  Id.  329.  The  law  as  to  pur- 
presture is  the  same  as  in  tide  water  rivers;  Kean  v.  Stetson, 
5  Pick.  492 ;  Ux  parte  Jennings,  6  Cow.  578 ;  People  v.  Canal 
Appraisers,  13   Wend.  355.     Islands    follow    the   same  law  as 


1420  DOVASTOX    V.    PAYNE. 

though  the  water  covered  them,  they  belong  to  the  public  or 
the  abutting  owner  according  to  whether  they  are  tide  washed 
or  not ;  Middletown  v.  Sage,  8  Conn.  222  ;  Claremont  v.  Carleton, 
2  N.  H.  369  ;  Greenleaf  v.  Kilton,  11  Id.  531 ;  Lunt  v.  Holland, 
14  Mass.  149 ;  Ingraham  v.  Wilkinson,  4  Pick.  268,  See  appar- 
ently contra,  Penn.  Coal  Co.  v.  AVinchester,  109  Pa.  St.  572 ; 
The  middle  of  the  stream  is  exactly  half  way  across  without 
respect  to  depth ;  McCuUough  ?'.  Wall,  4  Rich.  84. 

An  ordinary  grant  accordingly  passes  the  title  to  the  middle 
of  the  stream ;  Morrison  v.  Keen,  3  Greenl.  474 ;  Sleeper  v. 
Laconia,  60  N.  H.  201 ;  Lincoln  v.  Wilder,  29  Me.  169 ;  King  v. 
King,  7  Mass.  496;  Jackson  v.  Louw,  12  Johns.  252;  Noble  v. 
Cunningham,  1  McMull.  Eq.  289;  Norcross  v.  Griffiths,  65  AVls. 
599.  This  of  course  may  be  restricted  by  apt  words ;  Dunlap 
V.  Stetson,  4  Mas.  349  ;  Jackson  v.  Halstead,  5  Cow.  216  ;  Hayes 
V.  Bowman,  1  Rand.  417.  This  restriction  is  implied  where 
the  public  transfers  land  bordering  on  tlie  stream  ;  R.  R.  Co.  v. 
Schurmeir,  7  Wall.  282 ;  Yates  v.  Milwaukee,  10  Id.  504  ;  Serrin 
V.  Grefe,  67  Iowa  196 ;  Wood  v.  Fowler,  26  Ka.  682.  Usually 
apt  words  are  needed  to  create  the  restriction  ;  it  must  be  ex- 
press;  McCullough  V.  Wall,  4  Rich  84;  Arnold  v.  Elmore,  16 
Wis.  509 ;  Hegar  v.  C.  &  N.  R.  R.  Co.,  26  Id.  624 ;  Wash.  Ice 
Co.  V.  Shortall,  101  111.  46 ;  Piper  v.  Connelly,  108  Id.  646 ; 
Muller  V.  Landa,  31  Tex.  265 ;  Attorney-General  v,  Evart 
Booming  Co.,  34  Mich.  462 ;  Fletcher  v.  Thunder  Bay  River 
Boom  Co.,  51  Id.  277  ;  June  v.  Purcell,  36  Ohio  St.  396  ;  Day 
V.  P.  Y.  &  C.  R.  R.  Co.,  44  Id.  406 ;  Luce  v.  Carley,  24  Wend. 
451.  Although  some  cases  hold  that  the  intention  is  to  be 
sought  from  the  whole  deed ;  Hatch  v.  Dwight,  17  Mass.  289 ; 
Litchfield  v.  Fergusbn,  141  Id.  97  ;  Sanders  v.  McCracken,  Hard. 
258;  Hall  v.  Whitehall  Water  Power  Co.,  103  N.  Y.  129. 

What  shall  be  taken  to  be  apt  words  of  exclusion  is  a  ques- 
tion still  open  for  discussion.  In  Child  v.  Starr,  4  Hill  369, 
the  words  "  to  the  Genesee  River  thence  along  the  shore  of  said 
river,"  &c.,  were  held  to  be  words  of  exclusion,  as  also  are  the 
words  "to  the  bank  of  the  creek"  in  Halsey  v.  McCormick,  3 
Kern.  297.  See  to  same  effect,  Lincoln  v.  Wilder,  29  Me.  169. 
"•  To  the  river  or  any  part  of  the  river  on  which  the  island 
doth  abut "  conveyed  onl}^  to  high  water  mark ;  New  York  v. 
Hart,  95  N.  Y.  443.  On  the  other  hand,  the  words  "  up  to  the 
river "  were  held  not  to  exclude  in  Greenleaf  v.   Kilton,   11 


DOVASTON    V.     PAYNE.  1421 

X.  H.  531.  See  Carter  v.  Ch.  &  O.  R.  R.,  26  W.  Va.  644. 
"  High  -water  mark  "  does  not  fluctuate  with  the  advancing  or 
receding  shore  line ;  Nixon  v.  Walter,  41  N.  J.  Eq.  103.  The 
line  runs  at  right  angles  to  the  stream  from  the  extremities  of 
the  I'and  to  the  middle  of  the  stream;  Knight  v.  Wilder,  2 
Cush.  200.  See,  also,  Turner  v.  Parker,  14  Or.  340.  See  Morris 
V.  Beardsley,  54  Conn.  338,  for  the  rule  as  to  seashore. 

The  law  as  to  ponds  and  lakes  not  connected  with  the  salt 
water  is  the  same  as  in  the  case  of  tide  waters,  the  ownership 
goes  only  to  the  water's  edge ;  State  v.  Gilmanton,  9  N.  H.  461 ; 
Wood  V.  Kelley,  30  Me.  47;  Bradley  v.  Rice,  13  Id.  198; 
Stevens  v.  King,  76  Id.  197 ;  Wheeler  v.  Spinola,  54  N.  Y.  377 ; 
Canal  Comms.  v.  People,  5  Wend.  446 ;  Charaplain  &  St.  L. 
R.  R.  Co.  V.  Valentine,  19  Barb.  484.  See  Hodges  v.  Williams, 
95  N.  C.  331,  which  says  an  isolated  lake,  although  large,  is  not 
navigable,  and  a  riparian  owner  is  not  entitled  to  land  made 
by  a  withdrawal  of  the  water.  In  the  states  of  Alabama,  Iowa, 
Michigan,  Mississippi,  North  Carolina,  Pennsylvania,  West  Vir- 
ginia, and  some  other  states  the  navigable  rivers  are  treated 
as  tide  waters ;  Bullock  v.  Wilson,  2  Port.  436  ;  Moore  i'.  San- 
borne,  2  Mich.  520 ;  Stover  v.  Jack,  60  Pa.  St.  339 ;  Shrunk  v. 
Schuylkill  Nav.  Co.,  14  S.  &  R.  71 ;  Ravenswood  v.  Flemings, 
22  W.  Va.  52 ;  Wood  v.  Chicago  R.  I.  &  P.  R.  Co.,  60  Iowa 
456  ;  Carson  v.  Blazer,  2  Binn.  475  ;  Comm.  v.  Fisher,  1  P.  &  W. 
462 ;  Wilson  v.  Forbes,  2  Dev.  30 ;  Comm.  \k  Withers,  29  :\Iiss. 
39;  see  Wilson  v.  Welch,  12  Or.  353.  This  applies  only  to 
navigable  rivers  ;  Ingram  v.  Threadgill,  3  Dev.  59 ;  Coovert  v. 
O'Conner,  8  Watts  470. 

In  tide  waters  the  ownership  of  the  soil  is  to  low  water  mark, 
but  this  is  not  absolute.  The  owner  must  not  create  a  purpres- 
ture  there,  for  the  easement  of  the  public  extends  to  high  water 
mark;  he  may,  however,  do  anything  which  will  not  interfere 
with  this  easement;  Stover  v.  Jack,  60  Pa.  St.  338;  Wain- 
wright  V.  McCullough,  63  Id.  QQ ;  Zug  v.  Commonwealth,  70 
Id.  138 ;  Charlestown  &  S.  R.  R.  Co.  v.  Johnson,  73  Ga.  306. 
The  public  may  enter,  from  a  boat,  the  unenclosed  flats  be- 
tween high  and  low  water  marks,  and  from  them  fish  in  the  sea; 
Packard  v.  Ryder,  144  Mass.  440 ;  see  Bedlow  v.  N.  Y.  Floating 
Dry  Dock  Co.,  44  Hun  378. 

^     For  the  definition  of  the  word  navigable  it  is  necessary  to  go 
to  the  cases.     In  The  ^lontello,  20  Wall.  430,  the  court  said, 


1422  DOVASTON    V.    PAYNE. 

"  Rivers  are  navigable,  in  fact,  when  they  are  used,  or  are  sus- 
ceptible of  being  used,  in  their  ordinary  condition,  as  highways 
for  commerce,  over  which  trade  and  travel  are  or  may  be  con- 
ducted in  the  customary  modes  of  trade  and  travel  on  water. 
And  a  river  is  navigable  when  it  forms  by  itself  or  ita  connec- 
tions with  other  waters  a  continuous  higln\'ay,  over  which  ct»ni- 
merce  may  be  carried  on." 

A  stream  which  will  float  logs  to  market  is  navigable  ;  Olson 
V.  Merrill,  42  Wis.  203 ;  Shaw  v.  Oswego  Iron  Co.,  10  Or.  371. 
But  if  only  at  high  water  it  is  not ;  Lewis  v.  Coffee  County,  77 
Ala.  190 ;  contra^  Smith  v.  Fonda,  64  Miss.  551.  The  common 
law  test  of  navigability,  viz.,  tide  water,  has  never  been  adopted 
in  Pennsylvania  ;  Stover  v.  Jack,  (JO  Pa.  St.  338.  It  need  not 
be  navigable  continuously  at  all  seasons  of  the  year;  Walker  v. 
Allen,  72  Ala.  456.  The  Niagara  is  a  navigable  river  in  spite 
of  the  falls ;  Re  State  Res-Comms.,  37  Hun  537.  The  natural 
formation  of  sand  bars  and  accumulation  of  timber  will  not 
render  it  not  navigable  if  it  once  was  navigable ;  Goodwill  v. 
Bossier,  38  La.  An.  752 ;  see  Burroughs  v.  Whitwam,  59  Mich. 
279. 


ELWES  V.  MAWE. 


MICH.— 43  G.  3,  K.  B. 

[reported   3   EAST,   38.] 

A  tenant  in  agriculture,  wlio  erected,  at  his  oivn  expense,  and  for 
the  mere  necessary  and  convenient  occupation  of  his  farm,  a 
beast-house,  carpe7iter  s  shop,  fuel-house,  cart-house,  pump-house, 
and  fold-yard  ivall,  which  buildings  were  of  brick  and  mortar, 
and  tiled,  and  let  into  the  groimd,  cannot  remove  the  same, 
though  during  his  term,  and  though  he  thereby  left  the  premises 
in  the  same  state  as  ivhen  he  entered.  There  appears  to  be  a 
distinction  between  annexatioris  to  the  freehold  of  that  nature 
for  the  purposes  of  trade,  and  those  made  for  the  purposes  of 
agriculture  and  better  e^ijoying  the  immediate  profits  of  the 
land,  in  favour  of  tlie  tenant'' s  right  to  remove  the  former;  that 
is,  where  the  superincumbent  building  is  erected  as  a  mere  acces- 
sory to  a  personal  chattel,  as  an  engine  ;  but  tvhere  it  is  acces- 
sory to  the  realty,  it  can  in  no  case  be  removed. 

The  declaration  stated,  that  the  plaintiff  was  seised  in  fee  of 
a  certain  messuage,  with  the  out-houses,  &c.,  and  certain  land, 
&c.,  in  the  parish  of  Bigby,  in  the  county  of  Lincoln,  which 
premises  were  in  the  tenure  and  occupation  of  the  defendant 
as  tenant  thereof  to  the  plaintiff,  at  a  certain  yearly  rent,  the 
reversion  belonging  to  the  plaintiff;  and  that  the  defendant 
wrongfully,  &c.,  intending  to  injure  the  plaintiff  in  his  heredi- 
tary estate  in  the  premises,  whilst  the  defendant  was  possessed 
thereof  wrongfully  and  injuriously,  and  without  the  licence 
and  against  the  will  of  the  plaintiff,  pulled  down  divers  build- 
ings, parcels  of  the  said  premises,  in  his  the  defendant's  tenure 

142P. 


1424  ELWKS    V.    MANVE. 

and  occupation,  viz.,  a  hfust-housi',  a  furpf titer's  shop,  a  tvuifi/an' 
house,  a  futl-house,  and  a  pii/eon-Itoime,  and  a  f>rirk  uall  inclosing 
the  fold-yard,  and  took  ami  canicd  away  the  niaterials,  wliirh 
were  the  pro})erty  of  the  jdaintiff,  as  landlonl,  and  i-onverted 
them  to  his  the  defendant's  own  use;  hy  reason  whereof  the 
reversionary  estate  of  the  plaintiiT  in  the  premises  was  greatly 
injured,  »S:e.  The  defendant  pleaded  the  general  issue.  Ami 
at  the  trial  at  the  last  Lineoln  assizes  a  verdiet  was  found  for 
the  plaintiff,  with  i'Sl.  damages,  subject  to  the  oi)inion  of  the 
court  on  the  follow'ing  ease  :  — 

The  defendant  occupied  a  farm,  consisting  of  a  messuage, 
cottages,  barn,  stables,  out-houses,  and  lands,  at  Bigby,  in  the 
county  of  Lincoln,  under  a  lease  from  the  plaintiff  for  twenty- 
one  years,  commencing  i)n  the  12th  day  of  May,  1770;  which 
lease  contained  a  covenant  on  the  part  of  the  tenant  to  keep 
and  deliver  up  in  repair  the  said  yni'Hsuaije,  harn,  tttahlen,  and  out- 
houses, and  other  buildings  Indonging  to  the  said  iifiuinetl  prem- 
ises. Al)out  lifteeii  vears  bcfdic  tlu'  exj)iration  of  the  lease  the 
defendant  erected  upon  the  same  farm  at  his  own  expense  a 
substantial  hetist-hmise,  a  ettrpenters  x/iop,  a  t'uel-huuse,  a  rart- 
house,  and  pump-houxe,  an«l  fold-yard.  The  buildings  were  of 
brick  and  mortar,  and  tiled,  and  the  foundations  of  them  were 
about  one  foot  and  a  half  deep  in  the  ground.  The  carpenter's 
shop  was  closed  in,  and  the  other  buildings  were  open  to  the 
front,  and  supported  by  bi  ick  pillars.  The  fold-yard  wall  was 
of  brick  and  mortar,  and  its  foundatitm  was  in  the  ground. 
The  defendant,  previous  to  the  ex{)iiation  of  his  lease,  [)ulled 
down  the  erections,  dug  up  the  foundati(Uis,  and  carried  away 
the  materials,  leaving  the  })reniises  in  the  same  state  as  when 
he  entered  u[)on  them.  These  erections  were  ueeexnitrif  ami  con- 
venient for  the  occupation  of  the  farm,  which  could  not  be  well 
managed  without  them.  The  question  for  the  opinion  of  the 
court  was.  Whether  the  defendant  had  a  right  to  take  away 
these  erections.  If  he  had,  then  a  verdict  to  be  entered  for  the 
defendant ;  if  not,  the  verdict  for  the  plaintiff  to  stand. 

This  case  was  first  argued  in  Easter  Term  last  by  Torkington 
for  the  plaintiff,  and  Clarke  for  the  defendant ;  and  again  in 
this  term  by  Vaii(jhan,  Serjeant,  for  the  plaintiff,  and  Bahjuij 
for  the  defendant. 

For  the  plaintiff  it  was  argued  that  the  removing  the  build- 
ings in  question  w^as  waste  at  common  law,  and  that  this  case 


ELWES    V.    MA  WE.  1425 

did  not  fall  within  any  of  the  exceptions,  which  had  been  intro- 
duced solely  for  the  benefit  of  trade  in  relaxation  of  the  old  rule. 
That  rule  was,  that  whatever  was  once  annexed  to  the  freehold 
could  never  be  severed  again  without  the  consent  of  the  owner 
of  the  inheritance.  Accordingly,  glass  windows,  Avainscot, 
benches,  doors,  furnaces,  &c.,  though  annexed  by  tenant  for 
years  for  his  own  accommodation,  could  not  be  removed  by 
him  again,  Co.  Litt.  53  a.  The  principle  on  which  this  was 
founded  was  the  injury  which  would  thereby  arise  to  the  inher- 
itance from  disfiguring  the  walls  of  the  mansion  ;  though  some 
of  these  things  were  in  their  nature  personal  chattels,  supplying 
the  place  of  mere  moveable  utensils  and  furniture.  But  it 
never  was  questioned  but  that  buildings  let  into  the  soil  became 
part  of  the  freehold,  from  the  very  nature  of  the  thing.  This 
was  decided  so  long  ago  as  Hil.  17  Ed.  2,  518,  in  a  writ  of 
waste  against  a  lessee,  who  had  built  a  house  and  pulled  it  down 
during  his  term.  And  Co.  Litt.  53  a,  which  is  to  the  same  pur- 
pose, goes  further  and  says,  that  even  the  building  of  such  new 
house  by  the  tenant  is  waste ;  but  that  is  denied  in  Lord  Darcy 
V.  Ashwith  (a)  ;  though  that  also  agrees  that  the  letting  down 
of  such  new  house  built  by  the  tenant  himself  would  be  waste. 
So  taking  down  ^  stone  wall,  or  a  partition  between  two  cham- 
bers, is  waste.  10  Hen.  7,  2,  pi.  3.  It  does  not,  indeed,  appear 
by  that  book,  whether  those  erections  had  been  before  made  by 
the  tenant  himself :  but  they  were  so  taken  to  be  by  Mead,  J., 
in  Cooke  v.  Humphrey  (5).  All  this  is  confirmed  by  Lord  Coke 
at  the  end  of  HerlakenderCs  Case  (c),  where  it  is  said  to  have 
been  adjudged  in  C.  B.  that  glass  fastened  to  the  windows,  or 
wainscot  to  the  house,  by  the  lessee,  cannot  be  removed  by  him  : 
and  that  it  makes  no  difference  in  law  whether  the  fastening  of 
the  latter  be  by  great  or  little  nails,  screws  or  iron  put  through 
the  posts  or  walls  (as  had  been  .then  of  late  invented),  or  in 
whatever  other  manner  it  was  fastened  to  the  posts  or  walls  of 
the  house.  In  all  these  cases  the  rule  as  between  landlord  and 
tenant  seems  to  have  followed  that  between  heir  and  executor, 
founded  upon  the  reason  first  mentioned:  and  no  innovation 
upon  the  strict  rule  seems  ever  to  have  been  admitted,  except 
in  the  case  before  Lord  C.  B.  Corny ns  (d)  at  Nisi  Prius,  of  the 

(a)  Hob.  234.  (d)  Cited  in  Lawton  v.  Lawton,  3 

(b)  Moor,  177.  Atk.  13,  16. 

(c)  4  Rep.  63,  4. 


1426  ELWES    V.    MAWK. 

cider-mill,  which  lie  held  sliould  go  to  the  cxccuLor,  iiiul  not  to 
the  heir  ;  but  upon  what  particular  grounds  does  not  appear: 
and  the  case  of  Cullint/  v.  Tufnell  (a),  before  Lord  Ch.  .1.  Treby^ 
at  Hereford,  in  1694,  where  a  barn  erected  by  a  tenant  upon 
pattens  and  blocks  of  timber,  lying  on  but  not  let  into  the 
ground,  was  holden  to  l)e  removable  by  the  tenant:  but  even 
there  he  relied  on  the  cuxtoin  of  the  count rij  in  lavi>nr  of  the  ten- 
ant, with  reference  to  which  it  might  be  presumeil  tliat  he  and 
his  landlord  liad  contracted  (/<).  The  only  established  excep- 
tion (which  the  plaintiff's  counsel  admitted  was  as  ohl  as  the 
rule  itself)  is  in  favour  of  trade,  with  respect  to  articles  an- 
nexed to  the  freehold  for  the  purpose  of  carrying  on  trade  and 
manufactures.  In  20  Hen.  7,  fo.  13,  jd.  24,  an  heir  ])rought 
trespass  against  executors  for  taking  away  a  furnace  fixed  to 
the  freehold  with  mortar,  and  the  taking  was  holden  tortious. 
But  it  was  there  said  "that  if  a  lessee  for  years  set  up  sueli  a 
furnace  for  his  own  advantage,  or  a  dyer  his  vats  and  vessels  to 
carry  on  his  l)usiness  (^^^  during  the  W\\\\  he  may  remove  them: 
but  if  he  suffer  them  to  be  fixed  to  the  land  afti-r  the  end  of  the 
term,  then  they  belong  to  the  lessor;  and  so  of  a  baker."  Then 
follows,  "It  is  no  waste  to  remove  such  things  within  the  term 
by  any."  But  this  is  said  to  have  been  against  the  ojjinions 
before  mentioned,  and  to  have  been  doubted  in  the  42  PM.  3,  p. 
6,  pi.  19,  whether  it  were  waste  or  not.  It  is  clear,  therefore, 
from  the  whole  of  the  passage,  that  the  only  generally  admitted 
exception  was  in  favour  of  traders,  which  is  shown  by  the  ex- 
amples of  the  dyer  and  baker  afiixing  vessels  pur  occupier  son 
occupation:  and  that  at  least  it  was  doubtful  whether  the  same 
privilege  extended  to  others  affixing  to  the  freehold  similar 
articles.  And  the  exception  is  the  more  remarkable  because  at 
that  early  period  agriculture  must  have  been  of  much  greater 
importance  to  the  state  than  trade.  This  distinction  was  con- 
tinued in  later  times.  In  Poole  s  Case  (d),  M.  2  Ann.,  in  an 
action  on  the  case  by  a  lessee  against  the  sheriff  of  Middlesex, 
who  had  taken  in  execution  the  vats,  coppers,  tables,  partitions, 
and  pavement,  &c.,  of  an  under  lessee,  a  soap-boiler,  which  he 
had  put  up  as  fixtures  for  the  convenience  of  his  trade.  Lord  C. 
J.  Rolt  held  that  during  the  term  the  soap-boiler  might  well  re- 

(ffl)  Bull.  N.  P.  34.  (c)  The  words  in  the  original  are 

(6)  See    Wigglesworth  v.   Dallison,      '' pur  occnpier  son  occupation." 
ante,  vol.  i.  et  notas.  (d)  Salk.  368. 


ELWES   V.   MA  WE.  1427 

move  the  vats  set  up  in  relation  to  trade,  by  common  law ;    but 
that  there  was  a  difference  between  what  he  did  to  cany  on  his 
trade,  and  what  he  did  to  complete  the  house  ;    as  hearths  and 
chimney-pieces ;  which  he  held  not  removable.     The  next  case 
was  Cave  v.  Cave  (a),  in  1705,  where  the  Lord  Keeper  held  that 
not  only  wainscot,  but  pictures  and  glasses  put  up  in  the  place 
of  wainscot,  should  go  to  the  heir  and  not  to  the  executor,  to 
prevent  the  house  being  disfigured.     Then  followed  Laivton  v. 
Laivton  (J),  where  it  was  decreed  by  Lord  Hardiviche,  C,  that  a 
fire-engnie  erected  for  the  benefit  of  a  colliery  by  the  tenant  for 
life  should  be  considered  as  personal  estate,  and  go  to  liis  ex- 
ecutor, and  not  to  the  remainderman,  in  favour  of  creditors. 
But  there  it  was   proved   to   be    customary  to    move   such  an 
engine ;    that  in  building  the  shed  for  its  security  lioles  were  left 
for  the  ends  of  the  timber  to  make  it  more  commodious  for  re- 
moval ;  and  that  it  was  very  capable  of  being  removed.       The 
evidence  relied  on  by  the  other  side  was,  that  it  could  not  be 
removed  without  tearing  up  the  soil  and  destroying  the  hrick- 
loorh.     But  Lord  Hardivicke  considered  the  brickwork  there  as 
a  mere  accessory  to  the  engine,  which  in  its  own  nature  was  a 
mere  personal  moveable  chattel.     One  reason,  he  said,  which 
weighed  with  him  was,  that  it  was  a  mixed  case,  between  enjoy- 
ing the  profits  of  the  land  and  carrying  on  a  species  of  trade ; 
and  considering  it  in  that  light,  it  came  near  the  instances  of 
furnaces    and    coppers   in  brewhouses.     That  decision  was  in 
1743.     In  Ex  parte   Quincey  (c),  in  1750,  where  the  principal 
question  was  whether  the  utensils  of  a  brewhouse  passed  by  a 
mortgage  of  the  brewhouse  with  the  appurtenances  ;    it  is  said 
that  a  tenant  may,  during  the  term,  take  away  chimney-pieces 
and  even  ivainscot ;  but  the  latter  is   observed  to  be  a  very 
strono-  case.     The  same  was  before  said  in  Laivton  v.  Lawton, 
with  this  difference,  that  it  was  there  said  of  wainscot,  fixed 
only  by  screws  and  of  marble  chimney-pieces.     This  opinion  may 
have  proceeded,  as  it  did  in  Beck  v.  Eebow  (d),  upon  the  con- 
sideration that  matters  of  this  sort  were  merely  ornamental  fur- 
niture,  and  not  necessary  to  the  enjoyment  of  the  freehold. 
The  case  of  Lord  Dudley  v.  Lord   Ward  (e),  in  1750,  was  like 
that  of  Lawton  v.  Lawton,  on  the  authority  of  which  it  was  de- 

(a)  2  Vera.  508.  (f?)  1  P-  Wms.  94. 

(6)  3  Atk.  13.  (e)  Ambl.  113,  and  Bull.  N.  P.  34. 

(c)  1  Atk.  477. 


1428  ELWES    V.    MA  WE. 

cided.  There  Lord  ILtrdwicke  recognised  the  general  rule, 
with  the  single  exception,  as  between  landhnd  and  tenant,  that 
fixtures  annexed  by  the  latter  for  the  sake  of  trade  might  Ik-  re- 
moved. There,  too,  the  fire-engine  was  eoJisidered  as  the  prin- 
cipal, and  the  building  erected  over  to  preserve  it  ;us  the  mere 
accessory :  and  the  colliery  itself  as  in  part  the  carrying  on  of  a 
trade.  In  Lawton  v.  Salmon,  E.  22  Geo.  3,  B.  R.  (^a),  salt  pans 
were  holden  to  go  to  the  heir  and  not  to  the  executor:  and 
though  Lord  Mansfield  said  that  the  rule  had  been  relaxeil  as 
between  landlord  and  tenant,  tenant  for  life  and  remainderman, 
in  respect  of  things  put  \\\)  by  the  tenant  in  jmssession ;  still  he 
conlined  the  relaxation  to  things  so  jilVixcd  for  the  benefit  of 
trade.  And  he  there  alluded  to  the  case  of  the  cider-mill 
(doubtingly)  as  standing  alone,  and  not  piinted  at  large.  Then 
the  case  of  Dean  v.  Allalle//  (/*),  sittings  after  Kaster,  3l>  (ieo. 
3,  was  a  ease  where  two  sheds  called  Dutch  hamx,  wliii  li  liad 
been  erected  by  the  tenant  during  iiis  term  were  removed  by 
him:  and  being  sued  on  his  covenant,  by  which  he  undertook 
to  leave  all  buildings  which  then  were,  or  should  he  erected  on 
the  premises  during  the  term  in  repair.  Lord  Kent/on,  at  Nisi 
Prius,  held  that  buildings  of  that  description  were  not  included; 
and  said  that  the  law  would  make  the  most  favourable  construc- 
tion for  the  tenant  where  he  had  made  necessary  and  useful  erec- 
tions/'or  the  benefit  of  his  trade  or  vianvfacture.  Of  what  precise 
description  the  buildings  there  were  does  not  a[)pear ;  possibly 
not  affixed  to  the  ground  (f),  at  least  not  such  parts  as  w<'re 
removed.  If  not,  the  case  amounts  to  not  more  than  that  of 
Penton  v.  Rohart  ((/),  where  a  varnish-house  of  wood,  which  had 
been  erected  on  a  brick  foundation  by  the  tenant/or  the  purpose 
of  carryiiig  on  his  trade  was  removed  by  him.  But  it  did  not 
appear  there  that  the  foundation  was  removed,  but  only  the 
superstructure  of  tvood,  which  had  been  brought  by  the  tenant 
from  another  place,  where  he  had  before  carried  on  his  business. 
Lord  Kenyon,  indeed,  there  laid  stress  on  the  instances  of  gar- 
deners and  nurserymen  in  the  neighbourhood  of  the  metropolis 
erecting  green-houses,  &c.,  which  he  considered  that  they  would 

(«)  Cited  in  a  note  to  Fitzherbert  v.  (c)  Vide  post,   what   account  was 

Shaw,  1  H.  Blac.  259.     Tlie  principal  given  of  this  case  in  the  arguments 

case   turned   on  a  particular   agree-  of  the  defendant's  counsel, 

ment.  (d)  2  East,  88. 

(b)  3  Espiu.  Ni.  Pri.  Cas.  11. 


ELWES   V.    MAWE.  1429 

be  at  liberty  to  remove.  Whether  that  be  done  under  particu- 
lar aoreements  or  not  does  not  appear :  but  supposing  the  law 
would  imply  an  exception  in  favour  of  tenants  of  that  descrip- 
tion, it  would  only  be  upon  the  ground  of  considering  them  as 
carrying  on  a  species  of  trade  ;  the  very  nature  of  their  occupa- 
tion and  of  the  letting,  being  to  enable  them  to  disannex  even 
trees  from  the  land  (a).  But  none  of  the  cases  have  gone  the 
length  now  contended  for :  and  the  very  grounds  on  which  ex- 
ceptions have  been  made  from  the  general  rule  preclude  the 
present  case.  Erections  of  this  sort  are  not  in  their  nature  tem- 
porary or  moveable,  but  are  calculated  solely  for  the  enjoyment 
of  the  land :  the  expense  of  erecting  them  is  great,  and  their 
value  is  great  on  the  spot,  but  of  trifling  consideration  when  re- 
moved :  the  injury  of  their  removal,  therefore,  is  much  greater 
to  the  landlord  than  the  benefit  of  the  materials  when  removed 
is  to  the  tenant.  If  the  exception  were  extended  to  buildings 
erected  for  the  purposes  of  agriculture,  it  would  be  as  extensive 
as  the  rule  itself,  and  would  therefore  destroy  it.  The  sole  ob- 
ject of  such  erections  is  for  the  purpose  of  enjoying  the  produce 
of  the  land ;  the  land  therefore  is  the  principal,  and  the  build- 
ing the  accessory  to  the  land.  This  distinguishes  it  essentially 
from  buildings  erected  for  engines  or  machinery  used  in  trade, 
where  the  personal  chattel  is  the  principal.  No  other  line  than 
this  can  be  drawn  without  overthrowing  all  the  authorities. 

For  the  defendant  it  was  contended  that  the  old  rule  of  law 
had  been  gradually  relaxed  between  landlord  and  tenant, 
though  not  so  much  between  tenant  for  life  and  remainder- 
man, or  between  heir  and  executor.  The  object  has  been  to 
encourage  tenants  to  lay  out  their  money  in  the  improvement 
of  the  premises,  and  in  making  their  industry  as  productive  as 
possible,  which  is  for  the  benefit  of  the  state  as  well  as  the 
individuals,  and  applies  at  least  as  strongly  to  tenants  in 
husbandry  as  in  trade.  Agriculture,  in  the  improved  state  in 
which  it  is  now  carried  on,  is  in  itself  a  trade ;  it  requires  a 
much  larger  capital  than  formerly,  and  the  use  of  more 
expensive    implements    and   machinery.       Without  the    aid  of 

(rt)  Lawrence,  J.,  on  the  first  argu-  &c.,  as  is  usual  in  sucii  cases.     But 

ment  intimated,  that  if  ground  were  he  expressed  a  wish  to  be  informed 

let  expressly  for  nursery  ground   it  of    the  usual    terms   of    the    leases 

might  be  considered  as  implied  in  the  under    which     such     grounds    were 

terms  of  the  contract,  that  it  was  to  holden  in  the  neighbourhood  of  the 

be  used  for  taking  up  young  trees,  metropolis. 


14;J0  ELWKS    V.    MAWK. 

luodcin  iinpjovL'incnts,  the  land  caniiot  Ix*  made  so  productive 
as  it  otlierwise  may  be,  uov  the  produce  so  well  prenerved  and 
brousrlit  to  market.  lUil  uidess  the  tenant  is  entitled  to  take 
away  with  him  at  the  end  of  his  term,  or  have  a  cnmiKMisation 
in  value  tor  buildings  like  these  in  (question,  erected  in  such 
a  niaiiMcr  as  to  \hi  capable  of  l)eing  removed  at  pleiwure  niid 
set  up  (Jii  any  other  farm,  he  will  not  Ik*  at  the  expense  of 
erecting  them  at  all  ;  and  thcreforj?  though  he,  and  through 
him  the  jiiiltlif,  will  .siilTtT,  \vi  tin-  landlord  will  not  In*  tiio 
better  tor  the  ri>,'ht  which  he  now  claims.  This  is  nt)  ({Uestion 
whether  permanent  additions  or  improvements  made  by  a 
tenant  to  an  old  dwellini^-house  or  out-i>uildin^,  or  even  new 
ones  of  that  sort  erected  by  him  for  his  personal  accr>mmodation, 
are  to  be  nnnoved  at  the  end  of  the  term;  for  not  even  pei-sons 
renting  i)remises  for  the  purpose  of  carry injf  on  trades  have 
any  such  i)rivilej^e:  but  whether  building  .so  ere<'te«l  for  the 
.sole  purpose  and  convenienct'  of  i-arryint;  on  the  farnu  that  is, 
of  turnint,'  to  the  best  account  the  capital  and  industrv  of  the 
faiiuer  in  his  trade  oi  business,  may  not  U-  removed  bv  him. 
Tile  mateiials  of  which  tin*  buildinj^s  ar«'  comjtoscd  cannot  vary 
the  law,  but  the  objects  and  interests  of  the  persons  concerneil. 
II  ill  the  ca.se  Dean  v.  Allallei/  (a),  the  tenant  wjus  entitled  to 
remove  the  buildiiiL^s  called  Dntfh  fmniH,  the  same  ruh'  will 
api)ly  to  the  buildini,^  in  (luestit)n,  which  are  sus  mu(d»  calcu- 
lated tor  removal.  For  in  that  case  (as  appears  from  the  .MS. 
note  of  one  of  the  coun.sel  in  the  cau.se),  the  sheds  erected 
"had  a  foundation  of  brick  in  the  ground,  and  uprights  fixed 
in  and  rising  from  the  brickwork,  and  supporting  tin-  roof,  which 
"vvas  composed  of  tiles,  and  the  sidi-s  oj)en,"  as  iti  the  present 
case.  If  the  exception  be  conlined  to  erections  fur  the  InMiefit 
of  trade,  Lord  Ketu/on  in  that  case  considered  the  JJntrh  barns 
as  coming  within  that  description.  This  is  consonant  to  the 
opinion  delivered  by  the  same  learned  judge  in  Penton  v. 
Rohart  (b).  It  is  true  that  was  the  case  of  a  varninh-hoi{sp  ; 
but  it  is  clear  that  his  lordship's  opinion  way  founded  on  the 
extension  of  the  exception  in  the  case  of  landlord  and  tenant 
generally;  for  in  the  instances  put  by  him  in  illustration  of  his 
opinion,  are  cases  of  gardeners  and  nurserymen,  whose  profits 
are  derived  out  of  the  immediate  produce  of  the  land  :  and  the 
buildings  now  in  question  are  no  more  annexed  to  the  soil  than 

(rt)  3  Espin.  Ni.  Pri.  Cas.   11.  and  MS.  (6)  2  East,  88. 


ELWES   V.    MAWE.  1431 

the  varnish-house  there  was,  which  was  on  a  foundation  of 
brick,  or  than  the  hothouses  and  greenliouses  of  the  persons 
alluded  to.  But  the  argument  does  not  rest  alone  on  very 
modern  cases,  but  is  strongly  supported  by  the  decisions  of 
Lord  Hardu'icke  in  the  cases  of  Laivton  v.  Lawtoji  (a)  and  Lord 
Dudley  v.  Lord  Ward  (J).  There,  even  as  between  tenants 
for  life  or  in  tail  and  the  remaindermen,  the  executors  of  the 
former  were  holden  entitled  to  the  fire-engines  of  collieries ; 
buildings  which  must  in  their  very  nature  be  annexed  to  the 
soil,  and  without  which  the  profits  of  the  land,  viz.,  the  coal, 
could  not  be  taken.  Those  were,  indeed,  said  to  be  mixed 
cases  between  taking  the  profit  of  land  and  carrying  on  a  trade  ; 
but  wherefore  mixed  does  not  so  plainly  appear.  So  the  case 
of  the  cider-mill  is  directly  in  point :  that  is  as  essential  to  the 
enjoyment  of  the  land  in  that  particular  species  of  produce 
out  of  which  the  cider  is  to  be  made,  as  barns  and  other 
buildings  are  to  the  enjoyment  of  arable,  or  beast-liouses  of 
pasture-land.  That  case  was  much  stronger  than  what  is  now 
contended  for ;  the  question  arising  there  between  the  heir  and 
executor,  where  it  may  be  admitted  that  the  old  rule  has  pre- 
vailed much  stricter.  All  the  cases  therefore  in  the  books 
between  persons  standing  in  that  relation  may  well  be  laid  out 
of  the  question,  as  they  turn  upon  the  presumed  intention  of 
the  ancestor  or  testator  in  favour  of  the  heir,  that  the  inheri- 
tance should  descend  to  him  entire  and  undefaced.  But  the 
case  of  Culling  v.  Tufnell  (<?),  before  Lord  Ch.  J.  Trehy,  which 
is  in  point,  was  between  landlord  and  tenant.  That  Avas  the 
case  of  a  ham  removed  by  the  tenant :  and  though  the  founda- 
tions Avere  not  dug  into  the  ground,  yet  its  very  weight  must 
have  sunk  it  in  some  measure  below  the  surface  of  the  soil.  It 
is  true  that  case  was  put  by  him  on  the  ground  of  the  custom 
of  the  country,  but  Buller  J.  in  citing  it,  observes  that  now, 
without  any  custom,  it  would  be  determined  in  favour  of  the 
tenant  without  any  difficulty ;  for  that  the  old  rule  had  been 
relaxed  as  between  landlord  and  tenant,  &c.,  though  still 
preserved  as  between  heir  and  executor.  No  distinction  is 
there  hinted  at  between  trade  and  agriculture.  In  Fitzlierhert 
V.  Shaiv  (f?)  the  question,  it  is  true,  turned  at  last  on  the  agree- 
ment; but    Gould,  J.,  was   decidedly  of  opinion  at  the  trial, 

(a)  3  Atk.  13.  (c)  Bull.  N.  P.  34. 

(&)  Ambl.  113.  \d)  1  H.  Black.  258. 


1432  ?:lwi:.s  v.  mawk. 

that  if  the  tenant  had  removed  the  huiUlin^'s  (hiring'  the  term,  ho 
would  liave  been  justifu'd  in  sodoin^;  and  thiMv  soiiif  of  the 
tliinti^s  ivnioved  were  a  sIiimI  built  nn  hrirkwork,  and  somi'  po»tu 
and  raih  erected  In  tlie  tenant,  all  which  ninsi  have  been  let 
into  the  ijfroniMl,  and  were  adapted  to  [»ui|H»se.s  of  af^'rii-ulture. 
Upon  the  whole,  ihey  contended  that  the  oidy  line  to  l>e  drawn 
from  all  the  books  wjis,  that  whatever  buildinjjs  wt-re  erected 
by  a  tenant  (i)e  the  materials  what  they  may,  nr  however 
placed  in  or  upon  the  ground),  for  tlu;  imme<liate  purposes  of 
his  trade,  or  for  the  more  advantaj^eous  takinij  or  improvinjj 
the  profits  of  his  farm,  he  may  remove  them  again,  provided  he 
leave  the  premises  on  his  (putting  jus  he  found  them.  Acconl- 
ing  to  this  rule  no  injury  could  ensue  to  the  landlord,  wliose 
property  would,  on  the  e«)ntrary,  l)t^  eventually  l»enetited  l)y  the 
belter  cultivation  of  it,  while  the  public  woidd  derive  an  im- 
mediate advantage  from  the  encouragement  alToidtd  to  the 
capital  and  industry  of  the  tenant. 

(  'iir.  ii'/r.  rttlt. 


Lord  Ullenhorouijh,  C.  .1.,  now  delivered  the  opinion  of  the 
Court.  This  was  an  action  upon  the  ea.se  in  the  nature  of 
waste  by  a  landlord,  the  reversioner  in  fee,  against  his  late 
tenant,  who  had  held  under  a  term  for  twenty-one  yeaix  a  farm 
consisting  of  a  messuage  and  lands,  out-houses,  and  barns,  «\:c., 
thereto  belonging,  and  who,  as  the  case  reserved  stateil,  during 
the  term  and  about  litti-en  years  iK'fore  its  expiration,  ere<te<I 
at  his  own  expense  a  heant-hntige,  a  carpenter  t>  nhop,  a  fuel-honxt., 
a  carf-housi\  a  pum/i-houxc  and  fold-yard.  The  buildings  were 
of  brick  and  mortar,  and  tiled,  and  the  fountlatKinx  of  them  were 
about  a  foot  and  a  half  deep  in  the  ground.  The  rarpentrrft 
shop  was  closed  in,  and  the  other  Iniildings  were  open  to  the 
howt  ?i\\(i  supported  hif  hrirk  \)\\\ay6.  The  fohl-i/anl  tvall  wuh  of 
brick  and  mortar,  atid  its  foumlatiou  was  in  the  i/round.  The  de- 
fendant, previous  to  the  expiration  of  his  lease,  pulled  down  the 
erections,  dug  up  the  foundations,  and  carried  away  the  mate- 
rials; leaving/  the  premises  in  the  same  xtate  ax  when  he  entered 
upon  them.  The  case  further  stated  that  these  erections  were 
necessari/  and  convenient  for  the  occupation  of  the  farm,  whii-h 
could  not  be  well  managed  without  them.  And  the  (piestion 
for  the  opinion  of  the  court  was,  Whether  the  defendant  had  a 
right  to  take  away  these  erections  ?     Upon  a  full  consideration 


BLWES  V.   MAWE.  1433 

of  all  the  cases  cited  upon  this  and  the  former  argument,  which 
are  indeed  nearly  all  that  the  books  afford  materially  relative 
to  the  subject,  we  are  all  of  the  opinion  that  the  defendant  had 
not  a  right  to  take  away  these  erections. 

Questions  respecting  the  right  to  what  are  ordinarily  called 
fixtures,  principally  arise  between  three  classes  of  persons.  1st. 
Between  different  descriptions  of  representatives  of  the  same 
owner  of  the  inheritance  ;  viz.^  between  his  heir  and  executor. 
In  this  first  case,  i.e.,  as  between  heir  and  executor,  the  rule  ob- 
tains with  the  most  rigour  in  favour  of  the  inheritance,  and 
against  the  right  to  cUsannex  therefrom,  and  to  consider  as  a 
j^ersonal  chattel,  anything  which  has  been  affixed  thereto. 
2ndly,  Between  the  executors  of  tenant  for  life  or  in  tail.,  and  the 
remainder7nan  or  reversioner  ;  in  which  case  the  right  to  fixtures 
is  considered  more  favourably  for  executors  than  in  the  preced- 
ing case  between  heir  and  executor.  The  third  case,  and  that 
in  which  the  greatest  latitude  and  indulgence  has  always  been 
allowed  in  favour  of  the  claim  to  having  any  particular  articles 
considered  as  personal  chattels  as  against  the  claimant  in  re- 
spect of  freehold  or  inheritance,  is  the  case  between  landlord 
and  tenant. 

But  the  general  rule  on  this  subject  is  that  which  obtains  in 
the  first  mentioned  case,  i.e..,  between  heir  and  executor ;  and 
that  rule  (as  found  in  the  Year-book,  17  E.  2,  p.  518,  and  laid 
down  at  the  close  of  lierlakenden  s  Case.,  4  Co.  64,  in  Co.  Litt. 
53 ;  in  Cooke  v.  Humphrey.,  Moore,  177,  and  in  Lord  Darcy  v. 
Asquith,  Hob.  234,  in  the  part  cited  by  mj^  brother  Vaughan, 
and  in  other  cases),  is,  that  where  a  lessee,  having  annexed  any- 
thing to  the  freehold  during  his  term,  afterwards  takes  it  away, 
it  is  waste.  But  this  rule  at  a  very  early  period  had  several 
exceptions  attempted  to  be  engrafted  upon  it,  and  which  were 
at  last  effectually  engrafted  upon  it,  in  favour  of  trade  and 
of  those  vessels  and  utensils  which  are  immediately  subservient 
to  the  purposes  of  trade.  In  the  Year-book,  42  Edw.  3,  6,  the 
right  of  the  tenant  to  remove  a  furnace  erected  b}^  him  during 
his  term  is  doubted  and  adjourned.  In  the  Year-book  of  the  20 
Hen.  7,  13  a  &  b,  which  was  the  case  of  trespass  against  execu- 
tors for  removing  a  furnace  fixed  with  mortar  by  their  testator, 
and  annexed  to  the  freehold,  and  which  was  holden  to  be 
wrongfully  done,  it  is  laid  down,  that  '•  if  a  lessee  for  years 
make  a  furnace  for  his  advantage,  or  a  dyer  make  his  vats  or 


14li4  Kl.WKS    \.    MAWK. 

vessels  to  occupy  his  ocnifuition,  diirin;/  hi»  term  hi*  limy  remove 
tlu'iii :   but  if  he  suffer  them  to  be  fixed  to  the  earth  utter  the  tertn^ 
then  they  belon<i  to  the  lemior.     And  ho  of  a  Uikor.     v\iul  it  in  not 
waste  to  remove  suih  thing's  witliin  the  term  hy  Home :  uiul  thin 
shall  he  a^'aiiist  the  opinions  aforesai<l."      But  tlie   ruh-  in  this 
extent  in  favour  of  ten;inls  is  douhltMl  iifterwanls  in  -1   Urn.  7, 
27,  and  niun»\ve«l   then-,  hy  all(»win^'  that  the  lesMee  for  yeiiro 
could  only  renntve,  within  the  term,  iWiw^  fijed  to  the  ijrouiuK 
and  not  to  the  walU  of  the  prineipal  imikling.      However,  in  pro- 
cess of  time  the   rule  in   favour  of  tiie   ri^dit   in   tlie  tenant  to 
remove   utenxiln  set  up  in  relation  to  trade  l>eeame  fully  estal>- 
lished :    and    ai^eordin^dy   we    fnul   Lord  JLdt,  in   Poole\   Cane^ 
Sulk.  )i«>H,  lavinij  down  (in  the  instance   of   a   HoaiHlH>iler,  an 
untlt  r-lt'iiaiit,  whose  vats,  coppers,  «S:c.,  fixed,  hatl  Ihh'U  taken  in 
execution,  and  «»n  which  account  the  lirst  lessci'  ija<l  hrou^dit  an 
action  a«,'ainst  the  sheritT),  that  duriny  the  term   the  nnajt-hoiler 
niit/ht  well  remove  the  vain  he  itet  up  in  relation  to  trade  ;  and  tliat 
he   niii,dit  do  it   hy  the  common  law,  and  not  hy  virtue  of  any 
special  custom,  in  /aeon r  of  trade  and  to  eneouraye  indnnfrif  :  hut 
that  after  the  term,  they  l)eeame  a  gift  in  law  to  him  in  rever- 
sion, and  were  not  removahle.      He  adds,  that  there  was  a  «Hf- 
ference  between  what  the  soap-boiler  did  /"  '•//;•/•//  on  hi»  trade, 
and  what  he  did  to  comi)lete  hi»  house,  as  hearthx  and  chimney- 
pieces,  which  he  held  n<>l  removable.     The  indul«;ence  in  fav»)ur 
of  the  tenant  fnr  years  duriuLT  the  term,  has  l>een  since  carried 
still   further,  and  he  has  been  idlowed  t»»  carry  away  matters  of 
ornament,  as    ornamental    marble   chimney-pieces,   pier-j;fhiM.seH, 
hauij^inos,  wainscot  lixed  only  by  screws,  and  the  like.      Berk  v. 
Rebow,  1    1*.   Wms.  m ;    Ex   Parte   i^hiineey,   1    Atk.  477;    and 
Lau'fon  v.  Lawton,  3  Atk.  18.     liut   no  adjudt^ed  case  has  yet 
gone  the  length  of  establishing  that  buildings  subservient  to 
purposes  of  agriculture,  as  distinguished  from  those  of  trade, 
have  been  removable  by  an  executor  of    tenant    for   life,  nor 
by  the  tenant  himself  who  built  them,  during  his  term. 

In  deciding  whether  a  particular  fixed  instrument,  machine, 
or  even  building,  should  be  considered  as  removable  by  the 
executor,  as  between  him  and  the  heir,  the  Court,  in  the  three 
principal  cases  on  this  subject  (viz.,  Lawton  v.  Lawton,  3  Atk. 
13,  which  was  a  case  of  a  fire-enyine  to  work  a  colliery  erected  hy 
tenant  for  life:  Lord  Dudley  v.  Lord  Ward,  Ambler,  113,  which 
was  also  the  case  of  a  fire-enyine  to  ivork  a  colliery  erected  hy 


ELWES    V.    MAWE.  1435 

tenant  for  life  (these  two  cases  before  Lord  Hanhvicke')  ;  and 
Lawton^  executor,  v.  /Salmon,  E.  22  G.  3,  1  H.  Black.  259,  w 
7iotis,  before  Lord  Mansfield ;  which  was  the  case  of  salt  pans, 
and  which  came  on  in  the  shape  of  an  action  of  trover  brought 
for  the  salt  pans  by  the  executor  against  the  tenant  of  the  heir 
at  law),  may  be  considered  as  having  decided  mainly  on  this 
ground,  that  where  the  fixed  instrument,  engine,  or  utensil 
(and  the  building  covering  the  same  falls  within  the  same 
principle),  was  an  accessory  to  a  matter  of  a  personal  nature, 
that  it  should  be  itself  considered  as  personalty.  The  fire- 
eiigine  in  the  cases  in  3  Atk.  and  Ambler,  was  an  accessory  to 
the  carrying  on  the  trade  of  getting  and  vending  coals ;  a 
matter  of  a  personal  nature.  Lord  Hardivicke  says,  in  the  case 
in  Ambler,  "  A  colliery  is  not  only  an  enjoyment  of  the  estate, 
hut  in  part  carrying  on  a  traded  And  in  the  case  in  3  Atk.  he 
says,  "  One  reason  that  weighs  with  me  is  its  being  a  mixed 
case,  between  enjoying  the  profits  of  the  lands,  and  carrying  on 
a  species  of  trade :  and  considering  it  in  this  light,  it  conies  very 
near  the  instances  in  hrew-houses,  ^c,  of  furnaces  and  coppers.'''* 
Upon  the  same  principle.  Lord  C.  B.  Comyns  may  be  considered 
as  having  decided  the  case  of  the  cider-mill,  i.e.,  as  a  mixed  case 
between  enjoying  the  profits  of  the  land  and  carrying  on  a 
species  of  trade ;  and  as  considering  the  cider-mill  as  properly 
an  accessory  to  the  trade  of  making  cider. 

In  the  case  of  the  salt  pans,  Lord  Mansfield  does  not  seem  to 
have  considered  them  as  accessory  to  the  carrying  on  a  trade ; 
but  as  merely  the  means  of  enjoying  the  benefit  of  the  inheri- 
tance. He  says,  "  the  salt  spring  is  a  valuable  inheritance,  but 
no  profit  arises  from  it  unless  there  be  a  salt  work ;  which 
consists  of  a  building,  &c.,  for  the  purpose  of  containing  the 
pans,  &c.,  which  are  fixed  to  the  ground.  The  inheritance 
cannot  he  enjoyed  without  them.  They  are  accessories  necessary 
to  the  enjoyment  of  the  principal.  The  oivner  erected  them  for 
the  benefit  of  the  inheritance.'^  Upon  this  principle  he  con- 
sidered them  as  belonging  to  the  heir,  as  parcel  of  the  inheri- 
tance, for  the  enjoyment  of  which  they  were  made,  and  not  as 
belonging  to  the  executor,  as  the  means  or  instrument  of 
carrying  on  a  trade.  If,  however,  he  had  even  considered 
them  as  belonging  to  the  executor,  as  utensils  of  trade,  or  as 
being  removable  by  the  tenant,  on  the  ground  of  their  being 
such  utensils  of   trade ;   still  it  would  not  have  affected  the 


14;)G  KI.WKS    v.    MAWK. 

question  now  before  the  Court,  whiili  is  tlie  rij,'ht  of  »  truant 
for  mere  aifriniltural  purposes  to  remove  buiUliii^  !ixe(l  to  the 
freehold,  which  were  constructed  hy  him  for  the  ordinary  pur- 
poses of  husi>iin(hy,  and  connecte<l  with  no  description  of  trade 
whatsoever :  and  to  wliich  description  of  huihlinp*  no  cus« 
(except  the  Nisi  I'rius  case  of  Ueitn  v.  Allnlhif,  U'hjre  I^ord 
Kenifon^  and  which  (hd  not  un(U'ri,'o  the  suhHecpn'nt  review  of 
liimself  and  the  rest  of  the  Court),  hiis  yet  extende«l  tlie 
inthilt?enee  aUowed  to  tenants  in  respect  to  huihlini]^  for  tho 
purposes  of  trade.  In  the  case  in  liuUer's  Nisi  Prius,  .*J4,  of 
CulliiKjw  Tiifnell,  before  Lord  Ch.  .1.  T/vAy,  at  Nisi  Prius,  he 
is  stated  to  liave  hohlen  thai  the  tenant  wh«»  liad  ere«'ted  a 
ixtrn  upon  the  premises,  and  put  it  upon  pattenn  ami  hlork*  of 
tlinlier  Ij/int/  about  the  i/ri>unil,  hut  not  fixed  in  or  /"  the  iirinin>l, 
mi<;ht  l>y  the  custom  of  tiie  country  tak«'  them  aw.iy  at  the 
end  of  his  term.  To  l)e  sure  \\v  mii,'ht,  and  tiiat  without  any 
custom;  for  the  terms  of  tlu-  stati'mcnt  exchide  them  from 
being  considerctl  as  fij-tarex :  "they  were  not  fired  in  or  to  the 
(/rouHil.^'  In  the  case  of  Fitzherhert  v.  Shaw,  I  II.  lUack.  2">8, 
we  have  only  the  opinion  of  a  very  learned  Judge  indeed,  Mr. 
Justice  Gould,  of  what  would  have  heen  the  right  of  the  teiumt^ 
as  to  the  taking  away  a  aheil  built  on  brick-work,  and  some  po»t» 
and  rails  which  he  had  erected,  if  the  tenant  had  done  .so 
during  the  term  :  but,  as  the  term  was  put  an  end  to  by  a  new 
ciuitract,  the  (luestion  what  the  tenant  could  have  done  in 
virtue  »)f  his  right  under  the  old  term,  if  it  had  continued, 
could  never  have  come  judirially  i>efore  him  at  Nisi  I'rius: 
and,  when  that  (piestion  was  otfered  to  Ik.^  argueil  in  the  Court 
above,  the  counsel  were  stopped,  as  the  (piestion  w;us  excluded 
by  the  new  agreement.  As  to  the  case  of  Penton  v.  Robart,  2 
East,  88,  it  was  the  case  of  a  varnish-houae,  witii  a  brick  foun- 
dation let  into  the  ground,  of  which  the  woodwork  had  been 
removed  from  another  j)lace,  where  the  defendant  lja<l  carried 
on  his  trade  with  it.  It  was  a  buildinif  for  the  purpose  of 
trade  ;  and  the  tenant  was  entitled  to  the  same  indulgence  in 
that  case  which,  in  the  cases  already  considered,  had  been 
allowed  to  other  buildings  for  the  purposes  of  trade ;  as  fur- 
naces, vats,  coppers,  engines,  and  the  like.  And  though  Lord 
Keni/on,  after  putting  the  case  upon  the  ground  of  the  leaning 
which  obtains  in  modern  times  in  favour  of  the  interests  of 
trade,   upon  which   ground   it   might   be    properly  supported, 


ELWES    V.    MAWE.  1437 

goes  further,  and  extends  the  indulgence  of  the  hxw  to  the 
erection  of  greenhouses  and  hothouses  by  nurserymen,  and, 
indeed,  by  implication,  to  buildings  l)y  all  other  tenants  of 
lands ;  there  certainly  exists  no  decided  case,  and,  I  believe, 
no  recognised  opinion  or  practice  on  either  side  of  Westminster 
Hall,  to  warrant  such  an  extension.  The  Nisi  Prius  case  of 
Dean  v.  Allalley  (reported  in  Mr.  WoodfaWs  book,  p.  207,  and 
Mr.  Espinasse  s,  2  vol.  11),  is  a  case  of  the  erection  and  removal 
by  the  tenant  of  two  sheds  called  Dutch  hams,  which  were,  I 
will  assume,  unquestionably  fixtures.  Lord  Kcnyon  says,  "  The 
law  will  make  the  most  favourable  construction  for  the  tenant 
where  he  has  made  necessary  and  useful  erections  for  the  benefit 
of  his  trade  or  manufacture^  and  which  enable  him  to  carry  it 
on  with  more  advantage.  It  has  been  so  holden  in  the  case  of 
cider-mills,  and  other  cases ;  and  I  shall  not  narrow  the  law, 
but  hold  erections  of  this  sort,  made  for  the  henefit  of  trade,  or 
constructed  as  the  present,  to  be  removable  at  the  end  of  the 
term."  Lord  Kenyon  here  uniformly  mentions  the  henefit  of 
trade,  as  if  it  were  a  building  subservient  to  some  purposes  of 
trade ;  and  never  mentions  agriculture,  for  the  purposes  of 
which  it  was  erected.  He  certainly  seems,  however,  to  have 
thought  that  buildings  erected  by  tenants  for  the  purposes  of 
farming,  were,  or  rather  ought  to  be,  governed  by  the  same  rules 
which  had  been  so  long  judicially  holden  to  apply  in  the  case 
of  buildings  for  the  purposes  of  trade.  But  the  case  of 
buildings  for  trade  has  been  always  p>^i  ^^^^^^  recogyiised  as  a 
known  allowed  exception  from  the  general  rule  which  obtains 
as  to  other  buildings ;  and  the  circumstance  of  its  being  so 
treated  and  considered  establishes  the  existence  of  the  general 
rule  to  Avhich  it  is  considered  as  an  exception.  To  hold  other- 
wise, and  to  extend  the  rule  in  favour  of  tenants  to  the  lati- 
tude contended  for  by  the  defendant,  would  be,  as  appears 
to  me,  to  introduce  a  dangerous  innovation  into  the  relative 
state  of  rights  and  interests  holden  to  subsist  between  landlords 
and  tenants.  But  its  danger  or  probable  mischief  is  not  so 
properly  a  consideration  •  for  a  court  of  law,  as  whether  the 
adoption  of  such  a  doctrine  would  be  an  innovation  at  all: 
and,  being  of  opinion  that  it  would  be  so,  and  contrary  to  the 
uniform  current  of  legal  authorities  on  the  subject,  we  feel 
ourselves,  in  conformity  to  and  in  support  of  those  authorities, 


1438  i.Lui:>  \.  MAWi;. 

obli<,'e(l  to  proMouce   tli.il   tin-  (Uti'ntlaiit   lia«l  no  rij^ht   to  uku 
awiiy  the  cifctioiis  staU-tl  aiul  .1.  >.  i  il».-t|  in  ihi.s  cnim'. 

J'uttea  to  the  plaintiff. 


Till",  won!  hjrfiin  ,  it  lias  hvv»  rpmarknl  ■•>  u  u-.irnni  author,  U  u^««i  ■■»  illf- 
fi'iTiit  writers  to  t'XpiVH.sUlrt\T»'iit  iin-ntiliiUH  {Hw  Shfen  v.  /.'(ViiV.S  M-  4  W. 
17'j,  wluri-  it  was  licltl  timt  n/tT  rrr>li<-t  It  mljjlu  oven  \k'  iiMiuiiKtl  that  thrjr 
were  artlrlt-s  for  wlilili  troviT  woiilil  III-  ,  *vv  Itnlhnt  x  M'httlrnt,  ;i  «j.  II  1»»;|. 
Ill  llnllin  V.  Uitndrr,  I  ( '.  M.  &.  I{.  '-'7«"..  wImti'  \\wtv  wa>»  an  a«-tloii  for  ll\tiirt'« 
l)tir;;aiMc(l  and  sold,  and  sold  nnd  dcllvcn-il.  tlu'  court  <tald.  that  "the  noril 
llxtiin-s  has  a*-i|iiirrd  tin-  |K-(Miliur  ini-unlnK  of  chattels  which  have  Im-co 
uniu-xcd  to  till'  freehold,  hut  which  are  n-movahU'  at  the  will  of  the  fH^nMin 
who  annexed  thcin."  And  the  court,  lu  that  cii«e,  thouuht  that  neither  were 
they  ijiiiiih,  propi-rly  speakliiic  (see  I'lnrit  v.  //m/im#t.  II  M  A  W.  2-|;»;  Tripp 
V.  Annidiin,  4  M  &  NV.  M7  ;  [I^e  v.  liit»krU,  \  g.  II  1>.  TiJO.  aiitl  /'iNNoy  v. 
^'>■((v,  11)  Ch.  I).  i:(J),  nor  (lid  a  sale  of  them  trnntferany  Intereit  lu  lanUa 
within  the  iiieanin^  of  the  fourth  section  of  the  Statute  of  Frauds. 

It  seems  dllllcult.  however,  to  ii.se  the  tenu  "  llxtiiriHt "  Invarlahly  In  the 
above  sense  without  priHiucliii;  some  confusion;  for  If  mich  Im'  tlie  unlveptnl 
meanlii;;  of  the  wonl,  the  sjiiiie  thlnus  would  In*  jtjiurr*.  its  iH'twtt'n  iionie 
persons,  and  not  fixtures  as  iM'tween  i»lhep»  It  tweiu*  In-tler.  therffun*.  for 
the  purposes  of  this  note,  to  use  the  word  "jtjtHn"  In  tiwt  which  ap|N*iin« 
to  he  Us  natural  and  most  ohvlons  sense,  riz.,  nuffthing  HHHrsnl  tn  thr  frrf 
huia. 

Hy  the  expression  unnffil  ti>  fhr  frrrh<>lil.  Is  niennt  fnstenetl  to,  or  con- 
nected with  It  :  mere  Juxtn-po>itlon,  or  the  laylni;  of  nn  oliject.  however 
heavy,  on  the  freehold,  iloes  not  amount  to  itnnrj<iti'>n.  Thus  In  the  ca.s« 
clteil  In  the  text  from  Huller's  Nhl  I'rlus.  ;U,  of  I'ltUimj  v.  Tu/nrH,  when*  a 
tenant  hud  erected  a  Imrn  <>n  jttitlena  ninl  hhtrka  «»/  timltrr  lyimj  uh  thr  ijnuiHil, 
but  Hilt  Jixid  in,  or  tu  thr  (jrtiuml.  It  was  heltl  that  he  niUlit  take  thein  away  at 
the  end  of  his  term.  This  was  .said  In  Iliiller  to  have  Imvij  hy  the  custom  of 
the  country;  but  the  Lord  ('.  J.  remarks  In  the  text,  ••  To  Ih>  sure  hi>  mli;ht, 
and  that  witliout  any  custom;  /<»r  thf  tmnit  «»/  (A**  utalrmmt  rxrhnU  thftn  fttnn 
lii'iiKj  coiisiilriiil  Its  rixttiri'M.  Thftj  irrrf  not  jtj-rtl  in,  nr  in,  Ihf  ijnmmt."  See 
Anthony  v.  Ilanrys  and  Ilanlintj,  H  Hln>{.  IHIJ;  Ilnrn  v.  H»tkrr,'si  Fast,  215; 
D<tvis  V.  Jonis,  2  H.  it  A.  H;.') ;  and  W'ili.ihnir  v.  t'ultnll.  I  K.  &  U.  »'.74,  where 
it  was  held  that  a  {jranary  restinj;  upon  staddles,  which  were  hullt  Into  the 
jrround,  but  not  attached  to  them  except  hy  its  weight,  wa.s  not  a  fixture  In 
the  ordinary  sense  of  the  word,  so  as  to  pass  under  the  tenn  ••  llxtures"  In 
a  conveyance. 

In  the  case  of  Hcllmrill  v.  KustirDi,,!,  «;  Kxch.  'J'J't,  a  question  arose  as  to 
whether  certain  machinery  used  for  mannfacturln;;  purposes  was  attached  to 
the  freehold  so  as  to  be  exempt  from  distress  for  rent.  The  machines  con- 
sisted of  "mules"  used  for  spinnins;  cotton,  fixed  si'unc  by  means  of  screws 
into  the  wooden  floors  of  the  mill,  and  some  by  bein^  sunk  into  the  stone 
flooring  and  secured  by  molten  lead.  The  court  held  that  they  had  never 
become  part  of  the  freehold,  and  I'arke,  B..  In  dcllverin};  the  judi;ment  of 
the  court  said,  "they  were  attached  slightly  so  as  to  be  capable  of  removal 
without  the  least  injury  to  the  fabric  of  the  building  or  to  theraselvea ;  and 


ELWES    V.    MAWE.  1439 

the  object  and  purpose  of  their  annexation  was  not  to  improve  the  inheri- 
tance but  merely  to  render  the  machines  steadier  and  more  capable  of  con- 
venient use  as  chattels."  See  also  Huntley  v.  Biissell,  13  Q.  B.  572,  [and 
Waterfall  v.  Penistone.  6  E.  &  B.  876,  in  which  case  the  court  acted  upon  the 
rule  laid  down  in  Hellaioell  v.  Eastwood.  In  the  judgment  in  Mather  v.  Fraser, 
2  Kay  &  J.  536,  Wood,  V.-C,  fell  into  the  mistake  of  imagining  that  the  rea- 
soning of  Parlie,  B.,  in  Hellawdl  v.  Eastioood,  was  unnecessary  because,  as 
the  Vice-Chancellor  supposed,  tenants'  fixtures  are  distrainable  for  rent :  a 
not  unnatural  eri'or. 

In  Walmsley  v.  Milne,  7  C.  B.  N.  S.  115,  the  owner  of  land  mortgaged  it, 
and  afterwards  erected  buildings  on  it,  to  which,  for  the  more  convenient 
use  of  the  premises  in  his  business,  he  affixed  a  steam-engine  and  boiler,  a 
hay-cutter,  and  corn-crusher,  and  a  pair  of  grinding-stones.  It  appeared  that 
the  lower  grinding-stone  was  boxed  on  to  the  floor,  and  that  the  steam-engine 
and  other  articles  (except  the  boiler)  were  fastened  by  bolts  and  nuts  to  the 
walls  and  floors,  but  were  all  capable  of  being  removed  without  injury  either 
to  themselves  or  to  the  premises.  Under  these  circumstances,  the  court  held 
that  all  the  disputed  articles  formed  part  of  the  freehold,  and  could  not  be 
claimed  by  the  assignees  in  bankruptcy  of  the  mortgagor,  even  although  if 
the  relation  of  landlord  and  tenant  had  existed,  these  articles  might  have 
been  removed  during  the  term.  "  Without  expressing  any  opinion  on  Bella- 
icell  V.  Kastvviod,"  said  the  court,  "it  is  sufficient  to  observe  that,  assuming 
it  to  be  well  decided,  it  is  no  authority  for  holding  that  the  disputed  articles 
in  the  case  at  bar  are  not  fixtures  forming  part  of  the  freehold;  for  we  are 
of  opinion,  as  a  matter  of  fact,  that  theij  icere  all  firmly  annexed  to  the  free- 
hold f,r  the  purpose  of  improving  the  inheritance  and  not  for  any  temporary 
purpose.''~\ 

There  are  indeed  some  cases  of  what  is  called  constructive  annexation,  i.e., 
cases  in  which  an  object,  really  a  chattel,  is,  for  certain  purposes  annexed  to 
the  freehold.  Tluis  in  fJford's  Case,  11  Co.  50,  we  find  the  law  laid  down  as 
follows:  —  "  It  is  resolved  in  14  H.  8,  25  b,  in  Wistoio's  Case,  that  if  a  man 
has  a  horse-mill,  and  the  miller  takes  the  mill-stone  out  of  the  raid,  to  the 
intent  to  pick  it  to  grind  the  better,  although  it  is  actually  severed  from  the 
mill,  yet  it  remains  parcel  of  the  mill  as  if  it  had  always  been  lying  upon 
the  other  stone,  and  by  consequence,  by  lease,  or  conveyance  of  the  mill, 
shall  pass  Avith  it.  [See  the  judgment  in  Walmsley  v.  Milne,  7  C.  B.  N.  S. 
138.]  So  too  of  doors,  windows,  rings,  &c.  The  same  law  of  keys,  though 
they  are  distinct  tilings,  they  shall  pass  with  the  house." 

A  chattel  placed  by  its  owner  upon  the  freehold  of  another,  but  severable 
from  it,  as  a  door  wliich  may  be  lifted  from  its  hinges,  or  a  sliding  fender 
used  to  prevent  the  escape  of  water  from  a  mill-stream,  does  not  necessarily 
become  part  of  the  freehold.  It  is  matter  of  evidence  whether  by  agreement 
it  does  not  remain  the  property  of  the  original  owner.  Wood  v.  Hewitt,  8  Q.  B. 
913 ;  [and  the  ordinary  presumption  may  be  rebutted  by  circumstances  show- 
ing the  real  intention  of  the  act,  Lnvraster  v.  Eve,  5  C.  B.  N.  S.  717.] 

Such  too  are  heirlooms;  see  11  Vin.  Abr.  167;  Lord  Petre  v.  Heneage,  12 
Mod.  520;  1  L.  Raym.  728;  Piisey  v.  Puspy,  1  Vern.  273;  charters,  and  evi- 
dences attendant  on  the  inheritance  (see  Lord  v.  Wardle,  3  Bing.  N.  C.  680), 
and  the  deer  and  fish  in  a  man's  park  or  fish-pond.  See  Liford's  Case,  uhi 
supra,  Shep.  Touch.  470. 

Yet  in  these  cases  of  constructive  annexation,  the  articles  constructively 
annexed  do  not  acquire  all  the  incidents  of  realty ;  for  instance,  trover  may 


1440  KLVVKS   V.    MAWK. 

be  brought  for  th<in  like  other  chattels.  Yet  It  is  lalil  down  by  LonI  Toke. 
that  "  if  a  man  t)e  seised  of  a  lioiise,  and  possessed  of  tlivers  heirl<MMns,  tliat 
by  custom  liave  }i<me  witli  tiie  Ijouse,  and  by  Ids  will  devlsclh  away  the  heir- 
looms, this  devise  is  void."  Co.  Lltt.  185  b;  see  U'oodfson's  Lee.  :JMO;  Coin. 
Dlsj.  liii'iis,  II.;  Ilar.i^rave's  note,  Co.  Lltt.  18  b;  1  P.  Wms.  7110;  for  the  cuu- 
tom  vests  the  property  in  the  lu-lr  instantly  on  tin-  testator's  death,  whereiw 
the  will  has  no  etl'ect  till  the  tlrst  moment  afterwards. 

This  seems  the  proper  place  for  ineiitioinn*;  that,  in  calcnlatinu  the  rate- 
able value  of  property,  machinery  attached  to  It  ounht  to  be  taken  Into  ac- 
count without  considering  whether  It  be  real  or  personal  estate  »o  a.s  to  Imj 
liable  to  a  distress  or  a  11.  fa.,  or  whether  It  woidd  belonu  to  the  lamlloni  or 
tenant,  heir  or  executor.  A',  v.  (iuest,  7  A.  &  K.  'Jiil.  [AV*/.  v.  Inhni'tinutH  nf 
Lee,  L.  U.  1  Q.  K.  241,  Laimjy.  Jiishnpir^nrinoiith,  Mi.  B.  D.  '-".»'.»,  and  '///«/• 
Buih'r  Works  Co.  v.  Ocrsi-ers  of  L»nij  H>i,l'nt,  is  c^.  11.  1).  Hi,  where  the  last- 
mentioned  case  was  followed,  and  ('Imllfij  v.  I1V.W  Ilum,  :52  L.  T.  4m(;.  was 
explained  upon  the  facts]  See,  however.  /{<>', inunn  v.  Lrtinn/il,  7  M.  Jt  ^V. 
48,  where  the  value  of  steam  power  communicated  from  an  adjacmt  engine 
by  a  shaft  revolving  on  the  prendses  was  excluded  in  assessing  tlieir  tloublc 
value,  under  st.  4  G.  2,  cap.  28. 

Setting  these  cases  of  constnwtive  annexation,  which  are  comparatively 
unimportant,  and  on  which  few  practical  cpiestions  arise,  ctunpletely  out  of 
view;  the  general  rule  is,  that,  to  constitute  an  article  aHxtur)\  ir.,  part  of 
the  realty,  it  must  be  actually  aruu-xed  thereto;  and  f  mnrt-rsn,  whatever  Is 
so  annexed  becomes  part  of  the  realty,  and  the  person  who  wa.s  the  owner 
of  it,  when  a  chattel,  loses  his  projjcrty  In  it,  which  immediately  vests  In 
the  owner  of  the  soil.  Quii-(iHiil  iihintntnr  solit  si>h>  r,;lit.  See  Co.  Litt.  .'»:»  a; 
Deardi'ii  v.  Entjis.  .">  M.  &  VV.  11  ;  and  the  judgment  of  Tarke,  H.,  in  .\tinnhiiU 
V.  Lloyd,  2  M.  &  W.  450.  This  Is  the  general  rule,  but  there  are  ca.ses  In 
which  things  annexed  to  the  freehold  may  be  disannexed  and  carried  away 
by  some  person  claindng  a  property  in  them  as  against  the  owner  of  the 
freehold.  It  is  as  a  leading  authority  on  questions  of  this  sort  that  the  case 
reported  in  the  text  is  chietly  celebrated. 

Lord  Elleuborough,  as  will  have  been  seen,  divides  these  questions  into 
three  classes. 

1.  Between  heir  and  executor. 

2.  Between  executor  and  remainderman,  or  reversioner. 

3.  Between  landlord  and  tenant. 

We  will  consider  these,  and  one  or  two  others  not  noticed  in  the  text, 
beginning  with  the  most  extensive  class,  viz.,  that  of  questions  arising 
between  landlord  and  tenant. 

1.  The  general  rule  governing  tliis  subject  is,  that  the  tenant,  if  lie  have 
affixed  anything  to  the  frceliold  during  his  term,  cannot  again  remove  it 
without  the  consent  of  his  landlord.  See  Co.  Litt.  53  a,  [and  the  judgment 
of  Kindersle}',  V.-C,  in  Gibson  v.  The  Hammersmith  liailirai/  Co.,  :i2  L.  .1. 
Chan.  337].  But,  inasmuch  as  a  tenant  for  years  was  not  punishable  for 
waste,  before  the  statute  of  Gloucester,  neither  the  rule  nor  its  exceptions 
could  have  been  of  much  consequence  previous  to  that  period.  After  the 
passing  of  that  Act,  questions  between  landlord  and  tenant  occasionally 
arose  in  actions  of  waste,  and  an  opinion  was  soon  expressed  by  the  court, 
that  a  lessee  engaged  in  trade  and  who  had  set  up  fixtures  for  the  purpose  of 
carrying  that  trade  on  advantageously,  had,  in  some  cases,  a  right  to  remove 
them  at  the  expiration  of  his  term. 


ELWES    V.    MAWE.  1441 

This  seems  to  have  been  mooted  in  Year-book,  42  E.  3,  fo.  6,  pi.  19 ;  but 
is  flrst  expressly  laid  dowa  in  20  H.  7,  fo.  13,  pi.  24,  as  follows :  "  Si  le  lessee 
pur  ansfait  ascun  furneis  pur  sun  avantage,  on  dier  fait  des  fats  et  vaissels  pur 
occupier  son  occupation,  durant  le  terme  il  pent  remuer  eux.  Mes  s'il  souffert 
eux  etre  fixes  al  terre  apres  le  fin  del'  terme,  donq  ils  appent  aV  lessor.  Et  sic 
d'un  baker.  Et  n'est  ascun  Waste  ne  remuer  tids  choses  deins  le  terme."  In 
this  case  not  only  was  the  exception  in  favour  of  traders'  fixtures  pointed 
out,  but  also,  as  will  have  been  seen,  the  limitation  in  point  of  time  which 
still  prevails,  and  which  obliges  a  tenant  who  has  a  right  to  remove  fixtures, 
to  do  so  during  his  term.  Mr.  Amos,  in  his  valuable  work,  contends  with 
much  ingenuity,  that  this  case  establishes  an  exception  in  favour  of  other 
fixtures  set  up  by  lessees  for  years,  besides  trading  fixtures,  and  he  argues 
that  the  words  si  le  lessee  a  fait  ascun  fiirneis  pur  son  avantage,  must  be  taken 
to  mean,  if  the  lessee  have  set  up  any  furnace  for  his  pleasure :  and  he  cites 
a  book  entitled  "  Un  abridgement  de  touts  h's  ans  da  Roy  Henri  le  Sept,"  where 
the  words  ''pur  son  plesure"  are  substituted  for  "p?<r  son  avantage."  But 
this  abridgment  is  scarcely  to  be  relied  on,  for  it  omits  the  subsequent 
words  ^Hc  occupier  son  occupation,  which  are  very  important  to  the  question 
mooted  by  Mr.  Amos.  There  certainly  appears  to  be  some  improbability  in 
the  idea  of  the  lessee  having  put  up  a  furnace  in  his  house  for  pleasure. 
Besides,  Co.  Litt.  53  a,  is  expi-ess  that,  in  ordinary  cases  a  furnace  could  not 
be  removed;  and,  if  it  icere  removable  in  all  cases.  Avhy  should  the  words 
p7ir  son  avantage  have  been  added  at  all. 

This  is,  however,  merely  matter  of  curiosity,  for  the  law  respecting  the 
tenant's  right  to  remove  fixtures  was  not  long  allowed  to  depend  upon  decis- 
ions in  the  Year-books,  and  his  privilege  of  removing  trade  fixtures  was 
firmly  established  by  Poole's  Case,  1  Salk.  368,  Mich.  2  Anme;  where  it  is 
laid  down  by  Lord  Holt,  among  other  things,  "  that  during  the  term  a  soap- 
boiler might  well  remove  the  vats  he  set  iip  in  relation  to  trade,  and  that  he 
might  do  it  by  the  common  law  (and  not  by  virtue  of  any  special  custom)  in 
favour  of  trade,  and  to  encourage  industry.  But,  after  the  term,  they  become 
a  gift  in  law  to  him  in  the  reversion,  and  are  not  removable."  This  case 
was  followed  by  many  others,  asserting  the  same  exception,  and  grounding 
it  on  the  same  reason,  namely,  the  encouragement  aflbrded  to  trade  by  pub- 
lic policy.  See  Lawton  v.  Laioton,  3  Atk.  13.  Lawton  v.  Salmon,  1  H.  Bl. 
259  n,  recognised  in  Earl  of  Mansfield  v.  Blackburn,  6  Bing.  N.  C.  426;  Pen- 
ton  V.  Robart,  2  East,  90;  Dean  v.  Allalley,  3  Esp.  11;  Trappes  v.  Harter,  4 
Tyrwh.  121 ;  and  the  text.  In  Petrie  v.  Daioson,  2  Car.  &  Kir.  138,  Cresswell, 
J.,  held  that  a  reversionary  interest  in  trade  fixtui-es  would  pass  by  a  parol 
agreement. 

The  benefit  of  this  exception  was  held,  in  Laicton  v.  Lairtou.  to  apply  to  a 
tire-engine  erected  under  a  shed,  and  which  could  not  be  removed  without 
considerable  injury  to  the  freehold:  in  Dean  v.  Allalley,  3  Esp.  11,  to  a  shed 
set  up  for  trading  purposes,  called  a  Dutch  barn,  having  a  foundation  of 
brick-work  and  uprights  fixed  in  and  rising  from  the  brick-work  and  sup- 
porting the  roof  which  was  composed  of  tiles  and  sides  open  :  in  Fitzherbert 
V.  Shaw,  1  H.  Bl.  528,  to  a  shed  built  on  brick-work,  and  to  posts  and  rails. 
From  Penton  v.  Robart,  2  East,  88;  4  Esp.  33,  as  explained  by  Mr.  Amos, 
little  more  can  be  certainly  collected  than  that  Lord  Keuyou  at  N.  P.,  and 
the  court  afterwards,  thought  that  the  mere  erection  of  a  chimney  would 
not  prevent  the  right  which  would  have  other-wise  existed  of  removing  the 
surrounding  building.     In   Thresher  x.  E.  L.  Watn-i'-orks  Company.  2  B.  &  C. 


1442  ELWES   V.    MAWK. 

fi08,'  the  question  was  discussed,  whether  the  tenant  couhl  remove  a  lime- 
kiln substantially  built  of  i)rick  and  mortar  at  the  er)st  of  HWi/..  and  having 
its  foundations  let  into  the  jj;round.  The  case,  however,  turned  upon  other 
points. 

It  sometimes  liappens  that  the  tenant's  rii;iit  docs  not  di-pt-nd  altogether 
on  the  general  law,  but  is  extended  l)y  a  special  custom  or  Ux  Ion.  See  In 
CnlliiKj  V.  Tufitcll,  B.  N.  1'.  iU,  per  Treby,  C.  .1.;  iMirtmi  v.  Sulmnu,  W  Atk. 
15  n,  per  Lord  Mansrteld;  Withenll  \.  llmrilh,  1  Camp.  "-''J?  ;  /'uri.-i  \.  Joneg, 
2  B.  &  A.  I(i5;    'J'raj>pni  v.  JJurlcr,  4  Tyrwh.  (;•>:{. 

To  whatever  extent  the  right  to  remove  trade  fixtures  nniy  be  carried, 
common  sense  and  justice  seem  to  re(|uire  that  it  should  be  bounded  by  the 
rule  laid  down  by  Lord  Ilardwicke  in  LamUm  v.  LaiPtnn,  viz.,  that  the  prin- 
cipal tiling  "  shall  not  be  destroyed  by  the  accessory."  It  may  perhaps  l>o 
deduced  from  this,  that,  if  a  trading  llxture  couhl  not  be  removed  without  the 
destruction  or  great  and  serious  injury  of  some  important  l)uilding,  it  wouhl 
be  irremoval)le.  lint  when  the  building  is  but  an  ac<-essory  to  the  (Ixtnre, 
such  as  an  engine-house,  and  built  to  cover  it,  there  we  have  the  authority  of 
the  text  for  saying  that  one  as  well  as  the  other  is  removal)le. 

Where  a  lease  contained  a  c(»venant  to  repair,  and  yield  uj»  in  repair,  the 
furnaces,  lire-engines,  iron-works,  dwelling-houses,  an<l  all  other  erections, 
buildings,  improvements,  and  alterations,  to  be  thereafter  erected,  built,  or 
set  up,  cxn'pt  tho  iron-trork  custimjK,  railways,  wimseys,  gins,  nun-hiiu's.  and 
the  moveable  implements  and  nmlerials  used  in  or  about  the  .said  furnaces, 
fire-engine,  iron-works,  stove-i)its  anil  prennses;  and  there  was  a  p(jwer  given 
to  the  lessor  to  purchase  those  articles,  givinir  a  certain  notice,  it  was  lield 
the  lessee  had  a  right  to  remove  whatever  was  in  the  nattire  of  a  machine  or 
part  of  a  machine,  but  not  what  was  in  the  luiture  of  a  buiUling  or  support 
of  buiUiing,  (rlthi>uijh  made  of  imn  ;  ami  that  in  such  removal  he  might  «listurb 
such  brickwork  as  was  necessary,  and  was  not  bound  to  re.-;tore  it  to  a  perfect 
state,  as  if  the  article  it  was  intended  to  support  or  cover  was  still  there; 
Foley  V.  AddPiihrooh-p,  Vi  M.  &  \V.  174,  to  which  case  the  reader  is  referred 
for  the  description  of  a  great  number  of  articles  to  which  the  above  rule  wa.s 
held  applicable.  [Where  a  lease  c<mtained  a  provision  by  which  the  tenant 
renounced  the  ordinary  right  to  remove  tenant's  fixtures  during  the  term  it 
was  held  that  they  could  not  be  taken  by  the  sheritf  in  an  execution  against 
him.     Dnmoujne  v.  Rnmaoj,  2  U.  &  C.  777.] 

The  principal  case  shows  that  the  tenant's  privilege  with  respect  to  flxt>ires 
set  up  for  trading  purposes,  does  not  [at  common  law]  extend  to  those  set 
up  for  agricultural  ones.  Some  very  sensible  observations  on  this  point  are 
to  be  found  in  the  work  of  Mr.  Amos,  who  argues  with  great  force  that  the 
opinion  expressed  by  Lord  EUenborough  in  the  text,  viz.,  that  the  doctrine 
sought  to  be  established  by  the  defendant  "  was  contrary  to  the  uniform 
current  of  legal  authorities,"  can  hanlly  be  maintained ;  and  that  the  rule  laid 
down  by  his  lordship  is  liable  to  this  further  objection,  that  it  has  a  teiulency 
to  contine  the  privilege  of  the  tenant  within  narrower  limits  than  are  desig- 
nated by  the  policy  to  which  it  owes  its  existence ;  and  there  seems  no  good 
reason  for  conferring  it  on  trade  to  the  exclusion  of  husbandry,  a  pursuit 
equally  advantageous  to  the  community,  and  which  is  now,  like  manufactures, 
often  carried  on  by  the  aid  of  valuable  machinery.  Even  if  the  privilege  be 
confined  to  trade,  still  many  of  the  occupations  of  the  agriculturist  are  trades, 
using  that  word  in  its  extended  sense,  not  in  the  narrow  and  technical  one 
Avhich  it  expresses  in  the  Bankrupt  Act. 


ELWES    V.    MAWE.  1443 

The  opinion  that  trade  onglit,  with  reference  to  tlie  subject  now  under 
discussion,  to  bear  this  more  extended  sense,  is  countenanced  by  Lawton  v. 
Lawton,  3  Atk.  13:  Dmlley  v.  Warde,  Amb.  113,  in  wliich  Lord  Hardwicke 
appears  to  have  considered  tlie  privilege  in  question  as  belonging  to  fixtures 
by  means  of  wliich  the  owner  carried  on  a  species  of  trade  by  which  he 
rendered  the  produce  of  his  own  land  availal)le  to  liis  own  profit. 

Of  a  somewhat  similar  description  are  tlie  cases  of  nurserymen  and  gai'- 
deners,  who  may  remove  trees,  slirubs,  and  otlier  produce  of  tlieir  ground, 
planted  by  them  with  a  view  to  sale  (see  Penton  v.  Robart,  2  East,  91;  7 
Taunt.  191;  4  Taunt.  316;  see  also  Wansborough  v.  Matun,  4  A.  &  E.  884; 
i?.  V.  Oth'ij,  1  B.  &  Ad.  161),  which  ordinary  tenants  cannot  do,  Empson  v. 
Soden,  4  B.  &  Ad.  656;  1  N.  &  M.  720.  In  Penton  v.  Robart,  this  privilege 
was  considered  to  extend  to  greenliouses  and  otlier  similar  erections.  "  Shall 
it  be  said,"  asked  Lord  Kenyon,  C.  J.,  "  tliat  the  great  gardeners  and  nursery- 
men in  the  neiglibourliood  of  tliis  metropolis,  wlio  expend  thousands  of 
pounds  iu  the  erection  of  greenhouses  and  hotliouses,  &c.,  are  obliged  to 
leave  all  these  things  upon  the  premises,  when  it  is  notorious  tliat  they  are 
even  permitted  to  remove  trees  or  such  as  are  likely  to  become  such,  by  the 
thousand,  in  the  necessary  course  of  their  trade?  If  it  were  otherwise, 
the  very  object  of  their  holding  would  be  defeated."  2  East,  90.  Lord  Ellen- 
borough,  however,  in  the  principal  case,  disapproved,  as  will  have  been  seen, 
of  such  an  extension.  See,  too,  BucMand  v.  Butterfield,  2  B.  &  B.  58,  per 
Dallas,  C.  J. 

Upon  the  wdiole,  the  extent  of  tlie  tenant's  right  with  respect  to  agricul- 
tural fixtures,  does  not  seem,  even  as  yet,  quite  defined.  It  is  clear  that  it 
does  not  go  beyond,  and,  unless  the  opinion  expressed  by  Lord  Ellenborougli 
in  the  principal  case  be  modified,  it  falls  considerably  short  of  his  rights 
with  respect  to  trading  fixtures.  A  modern  statute,  liowever,  has  extended 
the  right  to  remove  agricultural  and  trading  fixtures.  By  the  14  &  15  Vic. 
c.  25,  s.  3,  it  is  provided  that  if  any  tenant  of  a  farm  or  land  shall  after  the 
passing  of  that  Act  (24  July,  1851),  with  the  consent  in  writing  of  the  land- 
lord for  the  time  being,  at  his  own  cost  and  expense,  erect  any  farm  building, 
either  detached  or  otherwise,  or  put  up  any  otlier  building,  engine,  or  machin- 
ery, eitlier  for  agricultural  purposes  or  for  the  purposes  of  trade  and  agricul- 
ture (which  shall  not  have  been  erected  or  put  up  in  pursuance  of  some 
obligation  in  that  behalf),  all  such  buildings,  &c.,  shall  be  the  property  of 
such  tenant,  and  removable  by  him,  notwithstanding  the  same  may  consist 
of  separate  buildings,  or  the  same  or  any  part  thereof  may  be  built  in  or 
permanently  affixed  to  the  soil ;  so  as  the  tenant  making  any  such  removal 
do  not  in  any  wise  injure  the  land  or  buildings  belonging  to  the  landlord,  or 
otherwise  do  put  the  same  in  like  or  as  good  plight  and  condition  as  the  same 
were  in  before  the  erection  of  the  things  so  removed.  Before  removal,  how- 
ever, every  tenant  must  give  to  the  landlord,  or  his  agent,  a  month's  notice 
in  writing  of  his  intention,  and  the  landlord  may  thereupon  elect  to  purchase 
the  things  so  proposed  to  be  removed,  whereupon  the  right  to  remove  shall 
cease :  the  value  is  to  be  ascertained  by  two  referees  (one  chosen  by  each 
party)  or  their  umpire,  and  is  to  be  paid  or  allowed  In  account  by  the  land- 
lord. [And  by  the  46  &  47  Vic.  c.  61,  which  repeals  the  Agricultural  Hold- 
ings Act  of  1875,  and  applies  only  to  holdings  wholly  agricultural  or  wholly 
pastoral,  or  in  part  agricultural  and  as  to  the  residue  pastoral,  or  in  whole  or 
in  part  cultivated  as  a  market  garden,  or  to  any  holding  let  to  a  tenant  during 


]444  KLNVKS    V.    MA  WE. 

his  (!(>ntiniinnce  in  any  olllcc,  appointment,  or  i-Miployniriit,  lnl«l  und.r  lin- 
lanillonl,  it.  is  fnitliiT  eniicteil  l)y  s.  :?4  : 

'•  Wiuro  after  tlie  coninu'iiceinent  of  tiiis  Act  a  ti-iiaMl  alllxes  t<»  lii"*  iioUlini; 
anv  eiii^iiic,  uiatliiiiery,/rM(/;(y,  or  other  (Ixtiire,  i>r  t-reits  any  huiUliiuj,  fur 
wliicli  lie  is  not  under  this  Act  or  otherwise  entitled  to  coiiipenMillon,  and 
wliicli  is  not  so  allixed  ur  ouctfd  in  pursuanee  of  some  ol)lii;atioii  In  that 
belialf,  or  instead  of  some  fixture  l)elon';iiiy  to  tlie  landlord,  then  sueli  llxture 
or  Indldiny  shall  be  the  property  of  and  be  removable  by  the  tenant.  hif»ri-  or 
within  a  rras«nabl>'  tinn'  aftt-r  the  terminntion  of  the  tenancij.  rrovUled  as 
follows  :  — 

1.  Before  tlx-  n-niovul  of  any  llxture  «»;•  f,itil<lini/  the  t»iiant  shall  pay  all 

rent  owinj:  l)y  liini  and  sliall  perform  or  satisfy  all  other  his  ol)rnin- 
tions  to  the  landlord  in  n-speet  of  the  holdiiis;. 

2.  In  the  removal  of  any  tlxture  nr  huililiinj  the  tenant  sludl  not  do  any 

avoidable  ilanui^e  to  any  nthi  r  buildini;  or  other  part  of  tlie  holdin;;. 

3.  Inunediately  after  the  renioval  of  any  llxture  or  huililiiiii,  tlie  tenant 

shall   make   <;ood  all  danniye  oeeasloned  to  any  otht-r  bidldUiK  or 
other  i)art  of  the  holding  by  the  removal. 

4.  The  tenant   shall  not  remove  any  tlxtun-  it  hniliUmj  without  ulvlnjj 

one  month's  i)revious  notice  in  writing:  to  the  lanillord  of  the  inten- 
tion of  the  tenant  to  ri-move  it. 

5.  At  any  time  before  the  expiration  t)f  the   notler  of   removal   the  hunl- 

lord  l)y  notice  in  writinj;  ;;iven  by  him  to  the  tenant,  may  elect  to 
purchase  any  llxture  <>r  huiliUnij  comprised  in  tlie  notice  of  removal, 
and  any  llxture  nr  hitililimj  thus  elecleil  to  be  purchased  shall  Ik>  left 
by  the  tenant,  and  shall  be<-onie  the  prop«Tty  of  the  lauillord,  who 
shall  pay  the  tenant  the  fair  value  thereof  to  an  Incomiui;  tenant  of 
the  hoklinn;  and  any  tlill'erence  as  to  the  value  shall  be  settleil  by  a 
reference  under  this  Act,  as  iu  case  <»f  compensation  (.but  without 
appeal). 
The  above  section  dillVrs  from  the  corropondinir  section  (r>;J)  of  the  for- 
mer enactment  mdy  by  tin-  addition  of  the  words  in  italics,  and  by  the  onds- 
siou  of  the  provisicms  as  to  st*'am-en;;lnes.] 

With  respect  to  llxtures  put  up  f(»r  purposes  of  i)ri»itt>ii-nl  or  rnnrfnirnre. 
Lord  Ilolt  had,  in  Pofih'n  f'dsf,  1  Salk.  'MiS,  expressly  denied  the  rl^ht  of  the 
tenant  to  remove  them;  autl  a  sinnlar  iloctrine  had  been  laid  «lown  lonj; 
before  in  IL  rld/o'inlrn'x  Cnsr,  4  t'o.  (!4.  thonirh  denied  in  S'/nifr  v.  Mnyrr,  2 
Freem.  249.  Hut  whether  the  opinion  of  Lord  Holt  expn-ssetl  in  Pnnle'a  Case, 
was  or  was  not  warranted  l>y  the  old  authorities,  it  is  now  settled  that  there 
are  many  ornamental  llxtures  which  the  tenant  is  entitled  to  remove.  Such 
are  hanjrin^s  and  lookin'r-i;lasses,  p'r  rurimn,  in  liirk  v.  /irlmir.  1  r.  Wms. 
94;  tapestry  and  iron  backs  to  chimneys,  for  the  executor  is  entitled  to  these 
as  against  the  heir,  Hanri/  v.  Ilarvei/,  Str.  1141,  and  the  tenant's  privileges 
against  the  landlord  are  more  extensive;  (see,  too,  per  (rihlts,  C.  J.,  In  Lee  v. 
Jiisdon,  7  Taunt.  191)  :  wainscot  fixed  hij  screws,  and  marble  chimney-pieces, 
per  Lord  llardwicke  in  Lairtnn  v.  Lawton,  3  Atk.  15,  and  I'j- p.  Qniinf>>/,  1  Atk. 
477,  and  per  Lord  Manstield,  1  H.  Bl.  260,  in  nntis;  stoves  and  grates  fixed 
into  the  chimneys  with  brick-work,  and  cupboards  supported  by  holdfasts, 
per  Bayley,  J.,  />'.  v.  (S'^.  Dnnstan,  4  B.  &  C.  (!8fJ ;  and  see  L"r  v.  liimlon,  7 
Taunt.  191;  see  further,  Colcgrare  v.  Dins  Snutas,  1  B.  &  C.  77;  Winn  v. 
Ingleby,  5  B.  ..t  A.  G2o :  A',  v.  Londonthnrpe,  C,  T.  K.  379. 

In  Crriimes  v.  Boicercn,  C  Bing.  437,  the  tenant  was  permitted  to  remove  a 


ELWES    V.    MAWE.  1445 

pump  Avhich  was  attached  to  a  stout  perpendicular  plank  resting  on  the 
ground  at  one  end,  at  the  other  fastened  to  tlie  wall  by  an  iron  pin  wliich  liad 
a  head  at  one  end,  and  a  screw  at  tlie  other,  and  went  completely  through  the 
wall:  "The  article,"  said  Tindal,  C.  J.,  "was  one  of  doinestk  convenience, 
was  slightly  fixed,  erected  by  the  tenant,  and  might  be  removed  entire."  But 
in  BurJ.-land  v.  Butterfield,  2  B.  &  B.  54 :  4  J.  B.  M.  440,  the  court  refused  to 
extend  the  privilege  of  ornamental  fixtures  to  a  conservatory  erected  on  a 
brick  foundation  fifteen  inches  deep,  attached  to  the  wall  of  the  dwelling- 
house  by  cantilivers  let  nine  inches  into  the  wall,  connected  with  the  parlour- 
chimney  by  a  flue,  and  having  two  windows  in  common  Avith  the  dwelling- 
house,  and  to  a  pinery  erected  in  the  garden  on  a  brick  wall  four  feet  high. 
The  court  said  that  it  was  "  clear  on  the  one  hand  that  many  things  of  an 
ornamental  nature  may  be  in  a  degree  aftixed,  and  yet  during  the  term  may  be 
removed ;  and,  on  the  other  hand,  equallj'  clear  that  there  maj'  be  that  sort  of 
fixing  or  annexation  which,  though  the  thing  annexed  may  have  been  merely 
for  ornament,  will  yet  make  the  removal  of  it  waste ;  that  every  case  of  this 
sort  must  depend  upon  its  peculiar  circumstances ;  and  that  no  case  had 
extended  the  privilege  so  far  as  to  include  the  case  then  under  consideration." 
See  West  v.  Blaketoay,  2  M.  &  Gr.  729,  [and  Wilde  v.  Waters,  IG  C.  B.  637,  in 
which  case  it  was  held  that  trover  would  not  lie  for  a  ladder,  a  crane,  and  a 
bench,  whicli  had  been  left  upon  the  premises  by  an  outgoing  tenant,  and  had 
been  fastened  to  the  floor,  joists,  and  walls  with  nails  and  sci'ews  in  the  usual 
way]. 

Mr.  Amos  remarks  that  Buckland  v.  Butterfield  may  be  considered  as  the 
leading  case  upon  the  subject  of  ornamental  fixtui'es. 

Whether  wainscot  fixed  without  screws  can  be  removed,  may,  perhaps,  be 
questionable.  Lord  HaMwicke  thought  it  could,  but  said  it  was  a  very  strong 
case,  and  many  of  the  older  authorities  are  the  other  v/ay. 

See  the  subject  discussed,  Amos,  [3rd  ed.,  12o-G],  where  four  circumstances 
are  pointed  out  as  mainly  essential  to  be  regarded  wherever  the  question  is 
whether  a  fixture  of  an  ornamental  nature  be  removable.  1.  The  mode  in 
which  and  the  extent  to  which  it  is  united  with  the  premises.  2.  Its  nature 
and  construction ;  as  whether  it  appear  to  have  been  intended  as  a  tempo- 
rary or  as  a  permanent  improvement.  3.  Whether  its  removal  is  likely  to 
occasion  any,  or  any  considerable,  damage  to  the  freehold.  Lastlj',  Avhether 
there  is  any  custom  or  prevalent  usage  applicable  to  the  case  in  question. 

[In  Bishop  v.  Elliott,  10  Exch.  496,  S.  C.  in  error,  11  Exch.  113,  where  a 
question  arose  as  to  the  construction  of  a  covenant  to  deliver  up  prelnises, 
with  all  fixtures  and  articles  in  the  nature  affixtures  belonging  thereto,  some 
important  observations  wei'e  made  in  the  judgment  of  the  Exchequer  Cham- 
ber with  I'eference  to  the  principle  upon  Avhich  the  right  of  a  tenant  to 
remove  ornamental  fixtures  depends.  After  referring  to  the  conflicting 
opinions  of  Lord  Holt  and  Lord  Hardwicke,  which  are  mentioned  above, 
and  to  the  judgment  of  Lord  Mansfield  in  Lawton  v.  Salmon;  1  H.  Bl.  260,  the 
court  proceeded  as  follows:  —  "It  does  not  appear  to  lis  at  all  difficult  to 
reconcile  the  difference  which  maj'  appear  in  these  authorities,  nor  to  extract 
the  principle  which  is  to  be  gathered  from  them.  Considering  that  the  law 
has  been  regularly  and  gradually  relaxing  its  rule  as  to  the  removability  by 
tenants  of  fixtures  erected  by  them,  the  difference  between  Lord  Holt  and 
Lord  Hardwicke  is  explained  by  the  difference  of  time.  Lord  Holt  was 
speaking  of  the  rule  unrelaxed ;  and  when  Lord  Hardwicke  spoke  of  chim- 
ney-pieces being  removable  generally,  without  any  qualification  as  to  their 


1440  ELWICS    V.    MAWi:. 

material  or  ornamentation,  it  cannot  bo  snpijnseil  tliat  ho  Intendi'd  to  lay 
down  the  rule  more  broadly  tlian  he  did  in  a  later  case  (L'tirton  v.  Lmrtun,  3 
Atlc.  13),  when  he  spolce  in  more  qualified  terms  of  mari)le  chininey-ph'Cfs,  or 
than  Lord  MansHeld,  when  he  used  the  same  qualillfd  terms  still  later  (In 
LawUm  v.  Salmon,  1  II.  Bl.  2G0).  Nor.  on  tlie  other  hand,  w«»ul<l  it  be  rea- 
sonable to  suppose  that  the  latter  intended  to  linut  It  to  marlih-  ehimney- 
pieces,  merely  as  such,  with  reference  to  the  expense  aiitl  artistic  skill 
employed  upon  them.  Both,  no  doul)t,  had  in  their  minds  the  same  principle 
which  the  later  cases  expressly  brini;  forward,  that  of  tluir  bcin^  ornamental. 
In  all  these  cases,  no  doubt,  the  same  princi|)le  was  inteniled  to  be  laid  down, 
which  is  more  formally  and  precisely  stated  l)y  Dallas,  C  J.  (In  Fimkitdiil  v. 
Butterfiekl,  2  B.  &  B.  54).  It  is  a  nuitter  of  common  knowledf;e,  that  n  cen- 
tury ago,  marble  chimney-pieces  of  ordinary  ijrain  and  plain  workmanship 
were  by  no  means  so  commonly  used  in  middle-rate  houses  as  now;  while 
chimney-pieces  of  foreign  marbles  and  workmanship  hiirhly  sculjjtured,  and 
of  much  expense,  were  objects  much  esteemed,  and  often  erected  in  houses 
of  a  higher  description.  Where  these  had  been  substituted  by  the  tenant  for 
a  chimney-i)iece  of  wood  or  stone,  it  was  l)nt  a  reasonable  relaxation  of  the 
strict  rule  of  law  U)  allow  their  removal  durini;  the  terni.  t)f  chimney-pieces 
sucli  as  these,  it  seems  to  us  that  Lord  llardwicke  and  Lord  Manslield  in- 
tended to  speak.  And  when  Lord  Ellenborouji;h  <;oes  more  into  detail,  by  his 
classing  them  under  '  luatters  of  ornament,'  and  with  '  pier-glasses,  hangings, 
and  wainscot  fixed  only  by  screws,  and  the  like,"  he  nuirks  distinctly  both  the 
principle  and  the  limit  of  the  relaxation.  Indeed,  It  would  be  very  unrea- 
sonable to  hold  that  a  chinmey-piece  of  tin-  plainest  worknumship  and  most 
moderate  expense,  however  atllxed,  might  be  removed  merely  because  it  was 
of  polished  limestone,  and  therefore  denominated  marl)le,  l)ut  that  one  of 
granite  or  freestone,  however  wrought,  and  at  whatever  exjiense,  or  of 
wood,  however  skilfully  carved,  nught  not."  See  also  Smnufr  v.  liruinihnc, 
34  L.  J.  Q.  B.  1.'50 :  :ni(l  a<  to  the  construction  of  contracts  limiting  the 
removal  of  fixtures  and  articles  of  a  similar  kind,  />mnry(ftir  v.  JliimKfH,  2 
H.  &  C.  777;  and  The  Duke  of  Bomtfort  v.  BntPK,  31  L.  J.  Chan.  481.] 

It  has  been  already  observed,  that  in  the  very  first  case  which  established 
the  tenant's  right  to  remove  fixtures  under  any  circumstances,  a  limitati<ui 
to  tlie  time  during  which  that  rii^ht  endures,  was  pointed  out.  That  limita- 
tion still  exists,  and  was  asserted  in  one  of  the  later  ca.ses  on  the  subject, 
Lyde  v.  Rusnell,  1  B.  &  Ad.  :{!)4.  The  rule  is,  in  the  Yt-ar-ltook.  20  H.  7,  laid 
down,  as  will  be  recollected,  in  the  following  words:  ••  Diniiifj  his  term  he 
may  remove  them,  but  if  he  sutler  them  to  reuuiin  fixed  a/tir  the  term,  they 
belong  to  the  lessor;  "  and  the  same  rule  with  respect  to  time  is  laid  down  in 
Poole's  and  several  other  cases;  Ex  parte  Quinrey,  1  Atk.  477;  Dudlrtj  v. 
Warcle,  Arabl.  113;  Lee  v.  Bidson,  7  Taunt.  191;  Buckland  v.  BuUerfield,  ubi 
supra;  Colegrave  v.  Dias  Santos,  2  B.  &  C.  79;  Lijde  v.  Russell,  ubi  supra; 
Weeton  v.  Woodcock,  7  M.  &  W.  14;  Rofey  v.  Henderson,  17  Q.  B.  .")74 ;  [Pn/jh 
v.  Artnn,  L.  R.  8  Eq.  62G]  and  the  principal  case. 

In  Penton  v.  Robart,  2  East,  88,  this  rule  was  somewhat  enlarged,  for,  in 
that  case,  it  was  decided  that  a  tenant  who  had  remained  in  possession  after 
the  expiration  of  his  term  had  a  riglit  to  take  away  fixtures  which  he  luight 
have  removed  during  his  term.  "  He  was,  in  fact,"  said  Lord  Kenyon,  "  still 
in  possession  of  the  premises  at  the  time  when  the  things  were  taken  away, 
and  therefore  there  is  no  pretence  to  say  that  he  had  abandoned  his  right  to 
them." 


ELWES    V.    Mx^WE.  .  l^^T 


These  words,  perhaps,  cast  some  slight  on  the   prmciple  which  governs 

thrsubiect      It  will  be  remembered  that  the  words  of  Lord  Holt  .n  Poole  s 

Zel- After  tke  term  tkey  lecame  a  gift  in  la.  to  him  in  ^'^--f' ■-"'  -^ 

not  removable"     It  would  seem,  therefore,  that  the  landlords  right  to 

Tern  depeTup-i  a  presumption  of  law  that  the  tenant,  quitting  the  prem^ 

?nt  the  expiration  of  the  term,  and  leaving  the  tixtures  behind  him,  intended 
;"be  tow  them  on  his  landlord,  to  whom  they  become  a  ,1ft  in  la.;  and  th.s. 

^X^s  on  the  premises  which  he  has  .uitt«l,  f « j^^^-^:  ^"^ 

•    1  ;.    thn^  liP  has  a  ri<'-ht  to  come  on  the  premises  foi    the   puipose  oi 

::;;t  ;;.    faw  y'     TM  "loctrine  «eem..  however,  to  assume  that  a  tenant 

— -:■  rt=c^s  -r^^^zT^  ":tt 
x:rrr:,;::^:r;:i:;:ryt::r^;>  t.:f:f  ^{  e 

tuected  from  the  several  cases  decided  on  this  subject  seems  to  be  this . 
t^Tt^.  right  to  remove  fixtures  conUni.s  during  ^  j^X^^^; 
and  during  such  further  period  of  possession  by  him  as  he  holds  the  p^enuses 
ur^der  a  right  stm  to  consider  h^^s^e^^^itr  ^^^^^^^^^^  ^^^^ 

fin  Leader  v.  Homewoud,  5  C.  B.  ^.  &•  o*o    d, 
demised  premises  for  some  days  after  the  expiration  of  hi.  te  m.     He  then 

f f  ;?^-:^';:;;:r;;^ir  rtJ  ^^^^^^^ 

r't  MS  term,  and  so  become  a  tenant  at  snffenvnce,  n.  -'-""  f^'-^ 
durlno  the  time  he  continues  In  possession  as  such  tenant  But  the  .ule, 
r;;.:  its  e.act  meaum,  ma,  -  's  .Jainiy  inconsis^nt  ^^^^^ 

■^lecera;.  to  consi.ev  the  import  of  the  tu.e  wi«,  ve.ei-ence^^^^^^  the  .-.gh 
of  a  tenant  at  sufferance  during  the  continuance  ot  such  tenancj  ,  becau  e 
he  ialorC.  in  the  present  case,  had  re-entered  -•«-*.;.'>';-  !  "  '° 

'itir^r2::^r^r:::zr'^M:h^::i:::^^^^^^ 
S?B^'frr-::;M:^h:-r:^-=^^^^ 

./ones,  ^  a.  .^  ^  +,  „  T    p    T  of  the  C   P  ,  in  ^farston  v.  Rowe,  8  A. 

the  principles  explained  by  the  L.  C.  J.  ot  tne  ^.  r., 


&  E.  59. 


1448  ELWES    V.    MAWH. 

Neither  has  it  ever  l)eeii  (Iffitlod  upon  solemn  ftrgnmcnt  whether  a  tenant 
wliose  iiiteri'st  is  uncertain  in  point  of  (iiiration  may  not  linve  Koiile  period 
after  tlie  expiration  (<f  liis  tenancy  allowed  liini  for  the  removal  of  his  iJx- 
tures;  and,  indeed,  the  case  of  eml)lenients  and  one  or  two  other  anal<.j;lcii 
atlord  reason  for  believiii;;  tluit  sudi  a  distinction  wt)uld  hv  eatulilished  la 
his  favour.  It  has  never  l)een  determined  upon  anli-mu  itnjummt,  hut  the 
point  mi<;lit  have  heen  involved  in  the  case  of  W'tiiiahnrinii/h  v.  Mntim,  4  A.  L 
E.  884.  'J'here,  a  tenant  for  lives  whose  interest  had  expired,  and  who  had 
quitted  the  premises,  recovered  in  trover  a  wooilen  harn,  which  re»ted  hy  ittt 
own  weight  on  a  stone  foundation.  This  case  Is,  however,  renUy  open  to  tlie 
observation  winch  has  (thouj^h,  perhaps,  grountllessly)  been  made  on  I'fntnn 
V.  linhart,  viz.,  that  the  i)arn  was  not  a  fixture,  hut  n  nu-re  chattel,  and  the 
decision  appears  to  have  proceeded  on  that  ;:round  alone. 

Supposini;  a  tenanl  whose  interest  is  of  uncertain  «luration  to  have  a  ri;:ht 
to  remove  fixtures  after  it  has  expireil.  It  is  clear  from  W'eftnu  v.  W'lunlroi-k, 
7  M.  &  W.  14,  that  such  riirht  must  he  exercised  irifhin  a  rrmxnialilf  titni' : 
see  the  facts  of  that  case.  )>n.it  [SlauihUl  v.  TUf  Maijnr  <>f  /'nrlimunith, 
i  C.  B.  N.  S.  120,  and  ^/oils  v.  ./itme.'<,  ;W  L.  T.  N.  S.  595.  Where,  hy  the 
terms  of  the  demise,  the  tenant  Is  entitled  to  remove  tenant's  fixtures,  and 
the  landlord  gives  notice  of  his  intention  to  re-t-nter  for  a  forfeiture,  the 
tenant  has  a  trasonahli'  time  fnmi  the  receipt  of  the  notice  for  their  removal, 
Suiniier  v.  /irfiniihnr,  M  L.  J.  Q.  B.  i;U)]. 

But  whatever  may  he  the  precise  lindtation  where  the  parties  arc  silent.  It 
is  clear  tluit  they  liavc  a  right  to  fix  one  for  themselves  hy  special  agreement; 
sec  Xaijlor  v.  ChIUikjc,  1  Taunt.  10;  J'niri/  v.  Ununt,  •>  Stark.  4o;{ ;  ffinKlirr  v. 
East  Liimlon  Wntcrxrorks  Cu.,  2  B.  &  C  OOS ;  A'dr/  o/  Mnn.\fielil  v.  Ulurkhitrne, 
C  Bing.  N.  C.  42(5;  U'pst  v.  lilnkcwnij,  2  M.  &  Gr.  755;  F»lry  v.  A<hlrnhrnnke , 
13  M.  &  W.  174;  Wood  v.  I/rwitt,  8  Q.  B.  I>1.'}.  AntI  It  may  he  iiuestlonable 
whether  such  a  stipulation  might  not  i)e  created  l)y  Implication  from  the 
custom  of  a  particular  district;  sec  W'iijfih'Kicnrth  v.  DalUson,  autf,  vol  1, 
et  uotas. 

In  Fairhurn  v.  Fastfond,  (',  M.  ,>;:  W.  CTO,  the  lease  contained  a  covenant 
that  the  fixtures  shoukl  he  valued  to  the  landlord  at  tlie  end  of  the  temincy. 
Tlie  tenant  having  become  l)anl<rupt,  and  tlie  landlord  to  wliom  the  j)rem- 
ises  had  been  delivered  up  having  refused  to  pay  tlie  amount  of  tlie  valua- 
tion to  the  assignees,  it  was  held  that  they  might  maintain  trover  against  him 
for  the  fixtures.  Tliis  case  appears  to  have  proceeded  on  the  principle,  that, 
as  the  landlord  by  the  terms  of  the  covenant  was  entitled  to  the  possession 
of  the  fixtures  on  condition  of  his  paying  for  them,  it  would  have  been  incon- 
sistent with  that  stipulation  to  hold  that  he  couUl  retain  them  after  breaking 
that  condition.  Tlie  case  is,  tiierefore,  one  in  which  the  ordinary  rule  was 
qualified  by  express  agreement.  See  as  to  the  effect  of  a  covenant  to  leave 
erections  and  improvemrnts,  West  v.  Bhikeirni),  2  M.  &  Gr.  729;  Bishop  v. 
EUiott,  [10  Exch.  496,  S.  C.  in  error,  II  Exch.  113;  and  Burt  v.  I/asletf,  18 
C.  B.  162;  S.  C.  in  error,  ib.  893.  Where  an  undcrlessee  covenanted  to 
deliver  up  all  landlord's  fixtures  at  the  end  of  the  terra,  it  was  held  that  there 
was  no  implied  covenant  or  representation  by  his  lessors  that  he  should  be  at 
liberty  to  remove  trade  fixtures  during  the  terra,  or  that  the  lessors  had  not 
entered  into  any  covenant  inconsistent  with  such  right.  Porter  v.  Drovj, 
5  C.  P.  D.  143;  49  L.  J.  C.  P.  482.] 

It  must  further  be  remarked  that,  unless  Penton  v.  Bohart  be  considered  as 
overruling  Fitzherbert  v.  JShaic,  1  H.  Bl.  258,  it  must  be  taken  with  the  iinpor- 


ELWES    V.    MAWE.  1449 

tant  qualification  established  by  that  case,  viz.,  that  where  the  tenant's  con- 
tinuance in  possession  is  under  a  new  lease  or  agreement,  his  rigiit  to  carry 
away  the  fixtures  is  determined,  and  he  is  in  the  same  situation  as  if  the  land- 
lord, being  seised  of  the  land  together  with  the  fixtures,  had  demised  both  to 
him.     See  Fitzherhert  v.  Shaw,  recognised  in  Heap  v.  Barton,  12  C.  B.  274. 

The  last  case  which  will  be  cited  upon  this  part  of  the  subject  is  Lyde  \. 
Russell,  1  B.  &  Ad.  39-t.  It  was  an  action  of  trover  for  bells,  pulls,  cranks, 
wires,  &c.,  hung  by  a  yearly  tenant  at  his  own  expense.  x\fter  the  tenant  had 
quitted,  the  landlord  took  down  the  bells,  and  refused  to  deliver  them  to  the 
tenant,  unless  he  would  pay  6Z.  which  he  claimed  for  rent.  The  tenant  was 
held  not  entitled  to  recover.  This  case,  with  which,  although  the  judgment 
is  not  long,  Lord  Tenterden  is  said  to  have  taken  great  pains,  goes  a  step 
further  than  any  prior  decision,  for  it  shows  that  on  the  tenant's  quitting  the 
land  the  property  of  fixtures  vests  so  completely  in  the  landlord,  that  even 
though  they  are  subsequently  severed  and  made  chattels,  the  tenant's  right 
to  them  does  not  revive.  It  seems  to  have  been  admitted  that  the  bells  were 
fixtures  for  domestic  convenience,  which  the  tenant  might  have  removed 
during  his  term. 

[It  must  be  observed  that  all  the  cases  mentioned  above,  in  which  the 
ancient  rule  of  law  with  reference  to  the  articles  affixed  to  the  freehold,  has 
been  relaxed  in  favour  of  trade,  are  cases  in  which  the  relation  of  landlord 
and  tenant  existed.  The  same  principles  are  not  applicable  whei'e  the  owner 
of  the  chattel  aftlxed  is  also  the  owner  of  the  fee.  See  the  judgment  of  Wood, 
V.-C,  in  Mather  v.  Eraser,  2  Kay  &  J.  536;  Walmsley  v.  Milne,  7  C.  B.  N.  S. 
115,  and  post,  p.  223. 

A  bequest  by  the  OAvner  of  a  leasehold  house  of  the  liousehold  furniture 
therein,  will  not,  except  under  special  circumstances,  carry  fixtures.  Finney 
V.  Grice,  10  Ch.  D.  13 ;  48  L.  J.  Ch.  247.] 

2.  The  next  class  of  cases  consists  of  those  in  which  the  question  is 
between  the  personal  representatives  of  tenants  for  life  or  in  tail,  and  the  remain- 
derman or  reversioner.  The  indulgence  extended  to  the  executors  and  admin- 
istrators of  these  persons  is  not  so  great  as  that  granted  in  the  case  of 
landlord  and  tenant,  and,  therefore,  though  it  may  be  safely  assumed  that 
any  fixture  removable  as  between  the  particular  tenant's  representative  and 
the  remainderman  would  be  so  as  between  landlord  and  tenant,  yet  the 
converse  is  by  no  means  true,  the  privileges  in  the  latter  case  being  more 
extensive;  and  therefore  it  is  that  the  cases  of  Laioton  v.  Lawton,  3  Atk.  13, 
and  Dudley  v.  Warde,  Ami).  113,  which  really  belong  to  the  class  which  we  are 
now  considering,  have  been  cited  as  authorities  applicable  to  the  former 
class. 

Those  cases,  coupled  with  the  observations  of  Lord  Mansfield  in  Latoion  v. 
Salmon,  1  H.  Bl.  260,  and  of  the  L.  C.  J.  in  the  principal  case,  show  that  the 
representative  of  the  particular  tenant  is  entitled,  as  against  the  remainder- 
man, to  fixtures  erected  wholly  or  in  part  for  the  furtlierance  of  trade,  and, 
as  the  remainderman  is  less  favoured  by  law  than  the  heir,  any  decision  in 
favour  of  the  executor  of  the  ancestor  against  the  heir  would  a  fortiori  be 
applicable  to  a  case  arising  between  the  executor  and  the  remainderman. 
Now  there  are  some  cases  in  which  the  executor  has  been  permitted  to 
remove  even  ornamental  fixtures  as  against  the  heir,  Harvey  v.  Harvey,  Str. 
1141 ;  Squier  v.  Mayer,  2  Freem.  249;  see,  too.  Bed.  v.  Bebow,  1  P.  Wms.  94. 
But  these  cases  do  not  go  far,  for  the  articles  given  up  to  the  executor  in 
them  seem  to  have  been  very  slightly  annexed  to  the  freehold,  and  rather 


1450  KLWKS    \  .    MAWK. 

chattels  than  fixtures  propt-rly  so  cjilU'tl ;  [iiiul  sei-  D'Eijiirnurt  v.  (irrgory,  L.  K. 
3  Eq.  382.] 

There  is  one  ease  in  wliicli  the  tinestion  arises,  not  preelsely  fn'tweeri  the 
executor  of  tenant  for  life  and  tlie  reniaindernian,  but  l»el\veen  the  execuUir 
of  a  parson  or  other  ecclesiastical  corporation  sole  and  his  successor.  In 
such  a  case,  as  the  chattels  of  a  corporation  sole  pass  to  the  executor,  he  Is 
entitled  to  certain  matters  of  ornament,  sucli.  for  instance,  as  hnnt;lni;s.  See 
Burn.  Eccl.  L.  304;  C;ibs.  7r»2.  The  ornaments  of  a  liishop's  ehapel  indeed 
are  the  sul)jects  of  a  peculiar  rule;  they  are  in  tlie  nature  of  lielrlooms,  and 
pass  to  the  successor.  Corcins  Casf,  V2  Co.  Hit".;  see  Iluirhij  \.  Kitiijht,  14 
Q.  B.  240. 

3.  ^l.s  between  Heir  ami  Exenttor.  —  This  is  tlu-  class  in  wldch  the  privllejfe 
of  removal  is  most  limited,  tlie  heir  i)einj;  tlu-  greater  favourite  «»f  the  law 
than  the  remaindennan.  The  rule  a«  laUl  down  in  Sheplierd's  Touchstone, 
4(!t),  470,  is,  that  the  executor  shall  not  have  "  the  inrUlentj*  of  a  Jiouse,  as 
glass,  doors,  wainscot,  and  the  lik*-,  no  more  than  the  house  Itself;  nor  pales. 
Avails,  stalks,  tables  dormant,  furnaces  of  lead  and  brass,  vats  in  a  brew  and 
dv(!-house,  standin;.;  and  fastened  to  the  walls,  or  standln;;  in  and  fastriu-tl  to 
tlie  j^rounil  in  the  middle  of  the  house  (though  fastened  to  no  wall  i.  a  eopprr 
or  lead  lixed  to  the  house,  the  doors  within  and  without  that  are  han;;in:;  to 
or  servins;  any  part  of  the  house.  .  .  .  Hut  if  tin-  ylass  be  from  tlie  win- 
dows, or  there  be  wainscot  loose,  or  doors  more  than  arc  u.sed  that  are  not 
haiininj;,  and  the  like,  these  thiufrs  shall  >;•>  to  the  executor  or  admiidstrator," 
and  this  will  be  found  consonant  with  the  <»ther  tmrirnt  authorities.  See 
Wentw.  Exors.  (*.2 ;  Com.  Dif;.  lliiiiK,  B. ;  3  Bac.  .\br.  r.3 ;   11  Vin.  .Vbr.  \M. 

Hut  modern  authorities  seem  to  have  somewhat  relaxed  tin-  striitni-ss  of 
this  rule,  so  far  as  fixtures  partly  or  wholly  essential  to  trade  are  eoneernetl. 
Tluis,  in  a  case  l)efore  C.  H.  Comyns,  ami  mentioned  in  Laieton  v.  Loirtnn,  3 
Atk.  14,  the  executor  recovered  from  the  heir  a  cider-njiU,  let  Into  the  uround 
and  affixed  to  the  freehold ;  ami  .Mr.  .1.  Hullcr  considers  the  «'ider-mill  as  on 
a  footing  in  this  respect  with  otiier  trading  llxtures  of  the  sanie  sort,  as 
"  brewing- vessels,  coppers,  and  tire-eiigines."     H.  N.  1*.  34. 

Yet  in  Lawton  v.  Sulmnu,  1  II.  HI.  2(;o  n  ;  3  Atk.  15  n.;  Lord  Mansfield 
refused  to  extend  the  privilege  to  salt-pans,  though  the  freehold  would  not 
liave  been  injured  l)y  their  removal,  saying,  that  the  inheritance,  as  hail  been 
l)roved,  could  not  Ijc  enjoyed  without  them;  and  he  spoke  doubtinirly  of  the 
autliority  of  the  case  of  tlie  cider-mill.  See,  too,  the  expressions  of  Lord 
Ilardwicke,  in  Dudlri/  v.  Warile,  and  in  Kx.  p.  (luiureij,  3  Atk.  477  ;  and  H.  X.  V. 
34,  where  the  existence  of  any  privilege  as  against  the  heir  in  respect  of 
trading  fixtures,  seems  to  be  denied.  See,  too.  Lord  Ellenborough's  expres- 
sions in  the  principal  case;  Fisher  v.  Dixon,  12  CI.  and  Fin.  312,  Dom.  Proc, 
a  Scotch  case,  Init  decided  upon  the  principles  of  English  law,  where  it  wa.s 
held  that  colliery  machinery,  erected  on  tlie  lands  for  their  better  enjoyment 
by  the  aljsolute  owner,  passed  to  the  heir,  whether  obtaining  the  heritage  by 
descent  or  purchase,  as  part  of  the  realty,  although  portions  thereof  were 
capable  of  being  detached  without  injury  to  the  freehold;  [Buin  v.  Brniid,  I 
App.  Cas.  762,  where  the  decision  was  similar  in  tlie  case  of  a  lease  which  is 
heritable  in  Scotland;  and  the  judgment  of  Wood,  V.-C,  in  Mather  v.  Fraser, 
2  Kay  &  J.  .')3G.] 

With  respect  to  ornamental  fixtures,  it  has  been  already  stated  that  tlie 
cases  of  Sqnier  v.  Mayer,  2  Freem.  249,  and  Ilarrey  v.  Unri-eij,  2  Str.  1141, 
were  between  heir  and  executor.     In  the  former,  hangings  nailed  to  the  walls, 


ELWES  V.    MAWE. 


1451 


and  a  furnace  lixed  to  the  freehold  and  purchased  with  the  house,  were  given 
to  the  executor,  and  the  authority  of  Herlakenden's  Case  to  the  contrary 
denied  In  the  latter,  hangings,  tapestry,  and  iron  backs  to  chimneys,  were 
recovered  by  the  executor  in  trover;  it  would,  however,  be  difficult  to  sup- 
port the  case  on  any  ground,  except  that  the  articles  recovered  were  looked 
upon  as  mere  chattels,  for  Colegrave  v.  Dlas  Santos,  2  B.  &  C.  76,  is  an 
authority  that  Ijxturcs  cannot  be  recovered  in  an  action  of  trover.  See,  too, 
Minshall  V.  Lloyd,  2  M.  &  W.  450;  MacJdntosh  v.  Trotter,  3  M.  &  W.  184. 
IWilde  V.   Waters,  16  C  B.  G37,  and  the  judgment  in  Dumergue  v.  Bumsey,  2 

II.  &  C.  777.]  ^  ^ 

In  Berk  v  Eeboio,  1  P.  Wnis.  94,  A.  B.  had  covenanted  to  convey  a  house 
and  an  things  affixed  to  the  freehold  thereof:  this  was  held  not  to  include 
hangings  and  looking-glasses  fixed  to  the  walls  with  nails  and  screws,  and 
w/iiSt  were  as  tminscot,  there  being  no  wainscot  underneath.  A  contrary 
opinion  had  been  expressed  the  year  before  in  Cave  v.  Cave,  2  Vern.  508 ;  3 
Bac  Abr  63,  with  respect  to  jnrtures  put  np  instead  of  icainscot ;  the  Lord 
Keeper  thought  that  they  belonged  to  the  heir,  for  that  the  house  ought  not  to 
come  to  him  maimed  or  disfigured,  [and  see  D'Eyncourt  v.  Gregory,  L.  R.  3  Eq. 
382]  There  is,  therefore,  some  contradiction  among  the  authorities  on  this 
subject:  and,  besides,  Herlakendcn's  Case  and  Cave  v.  Cave,  dicta  will  be 
found  in  very  modern  cases  which  militate  against  such  an  extension  of  the 
executor's  rights  as  Beck  v.  Rebow  would  appear  to  warrant.  See  the  judg- 
ment in  the  principal  case,  and  in  Lawton  v.  Salmon,  1  H.  Bl.  260  n. ;  Winn  v. 
Ingleby,5  B.  &  A.  625;  Colegrave  v.  Bias  Santos,  2  B.  &  C.  76;  and  li.  v. 
Inhabs.  of  St.  Dunstan,  4  B.  &  C.  686. 

The  rule  laid  down  by  Mr.  Justice  Blackstone  is,  "  Whatever  is  strongly 
affixed  to  the  freehold,  or  inheritance,  and  cannot  be  severed  thence  without 
violence  or  damage,  quod  ex  iedibus  non  facile  revellitur,  is  become  a  member 
of  the  inheritance,  and  shall  therefore  pass  to  the  heir."  See  also  the  judg- 
ments in  llellawell  v.  Eastwood,  6  Exch.  295;  iMather  v.  Eraser,  2  Iv.  &  J. 
536;    and  Wahnsle>i'y.  Milne,  7  C  B.  N.  S.  115.] 

4  There  is  another  class  of  cases  in  which  questions  have  arisen  as  to  the 
ri-ht  to  fixtures;  those,  viz.,  arising  between  vendor  and  vendee,  mortgagor 
and  mortgaqee.  There  appears  to  be  no  doubt,  that  upon  the  sale  of  the  free- 
hold fixtures  attached  to  it  will  pass  in  the  absence  of  any  express  provision 
to  the  contrary.  Per  Parke.  B.,  in  Hitchman  v.  Walton,  4  M.  &  AV.  409.  See 
Ruall  V  nolle,  1  Atk.  175;  Steward  v.  Lombe,  1  B.  &  B.  507;  rhresher  v.  E. 
London  Waterrvorks  Co.,  2  B.  &  C.  609.  And  in  Colegrave  v.  Bias  Santos,  2 
B  &  C.  76,  the  court  appears  to  have  considered  the  rule  between  vendor  and 
vendee  to  be  the  same  as  that  between  heir  and  executor.  "  In  the  case  of 
an  heir  selling  a  house  which  descends  to  him,  in  the  absence  of  any  express 
stipulation,  he  would  be  taken  to  sell  it  as  it  came  to  him,  and  the  fixtures 
would  pass  "  Per  Baylev,  J.,  ibid.  If,  however,  there  be  an  express  term  in 
the  ao-reement  relating  to  the  fixtures,  that  is  of  course  to  be  abided  by.  The 
words  "  nxtures  to  he  taken  at  a  valuation  "  are  sometimes  used ;  and  a  learned 
author  is  of  opinion,  that  these  include  such  fixtures  as  would  be  deemed  per- 
sonal assets  between  heir  and  executor.    (See  Hitchman  v.  Walton,  4  M.  &  W. 

409  ) 

Where  a  house  is  demised  together  with  the  fixtures,  the  tenant's  interest 
in  them  is  similar  to  that  which  he  enjoys  in  respect  of  trees ;  and  if  he  sever 
them  the  right  of  possession  immediately  revests  in  the  landlord,  who  may 
brin-  trover.     Earrant  v.  Thompson,  5  B.  &  A.  826.     However,  the  tenant's 


1452  ELWKS    V.    MAWK. 

interest  is  sufilcient  to  ctialjle  him  or  his  assignee  to  maintain  trover  against 
a  wrong-doer  wJkj  tortioiisly  severs  tliem.  HUihmnn  v.  Wntton,  4  M.  i  \V. 
409;  Buydell  v.  M'Michad,  1  C.  M.  &  11.  177. 

As  to  MorUjayes,  there  seems  no  good  reason  for  saying,  that  a  nmrtgage 
of  land  can  be  construed  to  pass  any  ditlerent  riglits  with  respect  to  llxtnreM 
than  a  conveyance.  (Hco  Ilitchiiinn  v.  Waltun,  4  M.  &\V.  400;  Lanyittaffe  v. 
Meaffoe,  2  B.  &  Adol.  1G7  ;  Tnippes  v.  Ilarttn-,  3  Tyrwli.  (50:$ ;  [and  WitlmHley  v. 
Milup,  7  C.  B.  N.  S.  11'),]  as  to  the  construction  of  such  niortgages).  The 
contrary,  indeed,  was  sui)posed  to  liave  been  laid  down  in  AV  />.  (ininrey, 
1  Atk.  477;  but,  as  Mr.  Amos  has  shown,  without  any  very  sulllcifnt  reason. 
The  continuing  possession  of  n.xtures  by  a  mortgagor,  after  a  mortgage  of 
the  land  to  which  they  are  annexed,  cannot  lie  tn-ated  as  a  l)adg<'  of  frnml. 
See  Stewart  v.  Lombe,  1  B.  &  B.  .lOG;  liyult  v.  liollf,  1  Atk.  IC.^. ;  Min:<h>ill  v. 
Lloyd,  2  M.  &  W.  450. 

[In  Waterfall  v.  renistone,  (J  E.  &  B.  806  (api)roved  by  Malins  V.-C,  In 
Beybie  v.  Femcick,  L.  K.  8  Ch.  1079  («),  it  was  lu-hl  that  maciiinery  annexed 
to  an  estate  after  a  mortgage  did  not  pass  to  the  mortgagee  its  parcel  of  tlio 
freehold,  the  instrument  of  mortgage  showing  tliat  the  parties  did  not  so  In- 
tend. But  in  a  later  case  in  wliieli  a  mortgai^or  who  was  the  owner  i)f  the 
inheritance  had  annexed,  after  tlie  date  of  tiie  mortgage,  tlxtures  to  the  free- 
hold for  a  permanent  purpose,  and  for  the  better  enjoynu-nt  «>f  the  estate,  It 
was  held  by  the  Court  of  Common  I'li-as  that  tliese  fixtures  had  l)ecome  a 
part  of  the  mortgaged  estate,  there  being  no  evidence  of  a  contrary  Intention, 
and  that  they  could  not  be  claimed  by  the  assignee  in  Imnkruptcy  of  the 
mortgagor,  although  they  ndgiit  be  trade  fixtures,  whicli  in  the  ca.se  of  an 
ordinary  tenancy  would  have  i)een  reniovablt-  l)y  the  tenant.  Waliiinley  v. 
Milne,  7  C.  B.  N.  S.  11").  .Vud  the  like  rule  applies  in  mortgages  of  lease- 
holds, both  as  to  tlxtures  annexed  at  tlie  time  of  and  snl)se(|nently  to  the 
mortgage,  and  whicii  in  the  onlinary  course  the  mortgagor,  had  he  not  exe- 
cuted the  mortgage,  would  have  been  entitled  to  remove,  Mnu  v.  Jariths.  \., 
R.  7  H.  L.  481.  In  Wahnxley  v.  Milnr,  the  court  explained  and  distinguished 
Trappes  v.  Harter,  and  Waterfall  v.  Peiiistone,  and  stated  tlmt  the  decisions 
which  establish  that  where  a  tenant  for  years  has  put  up  trade  tlxtures,  he 
may  remove  them  before  his  tenancy  expires,  have  no  application  to  cases 
between  mortgagor  and  mortgagee,  in  which  the  relation  of  landlord  and 
tenant  does  not  exist.  The  same  rule  was  recently  followed  in  CuUirk  v. 
Swindell,  L.  R.  3  Eq.  249;  and  Climie  v.  Wood,  L.  R.  :5  Ex.  2.-)7 ;  4  Ex.  .•528; 
and  so  as  to  trade  fixtures  annexed  in  a  "  7Ha.11  permanent  manner,"  Aon//- 
bottom  V.  Berry,  L.  R.  5  Q.  B.  12:$,  approved  in  the  ('.  A.  in  Shejjield,  &c., 
Buildiny  Society  v.  Harrison,  15  Q.  B.  I).  358,  54  L.  J.  C^.  B.  15.  See  also 
Mather  v.  Fraser,  2  Kay  &  J.  53G ;  Fx  parte  Ashhnry,  in  re  Ficharda,  L.  R.  4 
Ch.  630 ;  Holland  v.  Hodyson,  L.  R.  7  C.  P.  328 ;  Tottenham  v.  Swanitea  Zinc 
Ore  Co.,  52  L.  T.  738.  In  another  modern  case  a  lessee  mortgaged  tenant's 
fixtures  and  afterwards  surrendered  his  lease,  and  took  from  his  landlord  a 
fresh  term;  it  was  held,  under  these  circumstances,  that  the  mortgagee  had  a 
right  to  enter  and  sever  the  fixtures,  as  it  was  not  competent  to  the  tenant  to 
defeat  his  grant  by  a  subsequent  voluntary  surrender.  The  London  Loan  and 
Discount  Co.  v.  Drake,  6  C.  B.  N.  S.  798;  Saint  v.  Pilley,  L.  R.  7  Ex.  137. 
And  although  the  mortgagor  has  "  for  the  purpose  of  better  securing  the 
interest,"  attorned  tenant  to  the  mortgagee,  the  latter  is  entitled  to  the  trade 
fixtures  against  the  trustee  of  the  bankrupt  mortgagor,  though  affixed  after 
the  execution  of  the  mortgage,  Ex  parte  Punnett,  16  Ch.  D.  226,  50  L.  J. 


ELWES   V.   MAWE.  1453 

Ch.  212.  But  where  mortgagor  in  possession  tias  let  the  premises  after 
tlie  mortgage,  trade  fixtures  brought  on  by  the  tenant  may  be  removed  by 
him  as  by  any  other  tenant,  /Sandeis  v.  Davis,  15  Q.  B.  D.  218,  54  L.  J.  Q. 
B.  576. 

The  question,  wliat  are  fixtures?  was  frequently  discussed  with  reference 
to  the  operation  of  the  Bills  of  Sale  Act,  17  &  18  Vict.  c.  36  (now  repealed  ))y 
41  &  42  Vict.  c.  31),  as  to  the  registration  of  mortgages  embracing  fixtures, 
Boijd  V.  Shorrock,  L.  R.  5  Eq.  72 ;  Ilawtrey  v.  Butlin,  L.  R.  8  Q.  B.  290 ;  Ex 
parte  Dalglish,  L.  R.  8  Ch.  1072;  Meux  v.  Allen,  22  W.  R.  609  (decided  appar- 
ently under  a  mistake  of  fact,  see  Meux  v.  Jacobs,  ubi  sup.)  ;  and  the  rule 
established  under  the  earlier  act  would  seem  to  have  been  that  the  terms  of 
the  deed  itself  nmst  be  looked  at,  in  order  to  determine  whether  the  parties 
themselves  intended  to  constitute  the  fixtures  a  distinct  security,  in  which 
case  onl}'  would  the  deed  require  registration.  Ex  'parte  Barclay,  re  Joice, 
L.  R.  9  Ch.  576.  The  test  in  these  cases  has  been  Avhether  there  was  or  ^vas 
not  a  power  to  sever  and  sell  the  fixtures;  and  see  Re  Eslick,  ex  parte  Alex- 
ander, 4  Ch.  D.  503 ;  Re  Trethovjan,  Ex  parte  Tweedy,  5  Ch.  D.  559.  Questions 
of  this  kind  are  now  concluded  by  the  Bills  of  Sale  Act,  1878,  41  &  42  Vict. 
c.  31.  By  s.  4  of  that  statute,  fixtures  (when  separately  assigned  or  charged) 
are  constituted  "  personal  chattels"  for  tlie  purposes  of  the  act,  but  fixtures 
other  than  trade  machinery  as  tlierein  defined  are  excepted  from  the  defini- 
tion, when  thej^  are  assigned  together  with  a  freehold  or  leasehold  interest  in 
any  land  or  building  to  whicli  they  are  aftixed.  In  the  definition  of  "  trade 
machinery,"  s.  5,  the  fixed  motive  powers,  and  the  fixed  machinery  for  trans- 
mitting the  action  of  the  motive  powers,  and  pipes  for  steam,  gas,  and  water, 
are  excluded,  and  with  these  exceptions  the  machinery  used  in  or  attaclied  to 
any  factory  or  woi'kshop  is  constituted  personal  chattels,  and  any  disposition 
tliereof  wliicli  would  be  a  bill  of  sale  as  to  any  other  personal  chattels  shall 
be  deemed  to  be  a  bill  of  sale  within  the  act.  By  s.  7,  "  No  fixtures  or  gi-ow- 
ing  crops  shall  be  deemed,  under  this  act,  to  be  separatel}^  assigned  or 
charged  bj^  reason  only  that  they  are  assigned  by  separate  words,  or  that 
power  is  given  to  sever  them  from  tlie  land  or  building  to  which  they  are 
attixed,  or  from  the  lands  on  wliicli  tlie}'  grow,  Avithout  otherwise  taking  pos- 
session of  or  dealing  with  such  land  or  building,  or  land,  if  by  the  same  in- 
strument any  freehold  or  leasehold  interest  in  the  laud  or  building  to  ^^•hich 
such  fixtures  are  affixed,  or  in  the  land  on  which  such  crops  grow,  is  also 
conveyed  or  assigned  to  the  same  persons  or  person. 

"  The  same  rule  of  construction  shall  be  applied  to  all  deeds  or  instru- 
ments, including  fixtures  or  growing  crops,  executed  before  the  commence- 
ment of  this  act  and  then  subsistiug  and  in  force,  in  all  questions  arising 
under  any  bankruptcy,  liquidation,  assignment  for  the  benefit  of  creditors,  or 
execution  of  any  process  of  anj'  coui-f  which  shall  take  place  or  be  issued 
after  the  commencement  of  this  act." 

Putting  aside  therefore  trade  fixtures  in  the  limited  sense  of  the  definition, 
which  are  for  all  purposes  of  the  act  to  be  treated  as  mere  personal  chattels 
like  furniture,  the  legislature  would  seem  to  have  enacted  the  law  as  laid 
down  in  Mather  v.  Eraser,  and  Holland  v.  Hodgson,  viz.,  that  where  an  in- 
strument which  conveys  an  interest  in  land,  conveys  also  fixtures,  it  does  not 
require  registration ;  and  it  proceeds  to  get  rid  of  some  of  the  qualifications 
engrafted  upon  this  rule  by  cases  such  as  Re  Eslick,  supra,  by  providing  that 
some  of  the  tests  therein  referred  to  are  not  to  be  regarded  as  conclusive 
proof  that  the  fixtures  were  intended  to  constitute  a  separate  and  distinct 


1454  ELWES    V.    MAWK, 

security;  see  the  sections  considered  in  Ex  parte  Moore,  Ac,  Banking  Co.,  14 
Ch.  1).  371).  In  tliat  case  Bacon,  V.-C,  appart-ntly  refjnrded  a  tramway  a.s  not 
a  trade  fixture  within  tiic  (Iclliiitlon,  and  lirld  tiiat  It,  a.s  well  as  a  steatu  «rune, 
cramped  on  to  iarjie  stones  fixed  in  a  bed  of  mortar,  pa^sL-d  to  iliu  nmrt^aKeu 
of  the  land  without  rc-};istratlon.] 

Questions  respecting  the  riglit  to  fixtures  have  also  arisen  hfttrt-rn  the 
assignees  of  bankrujits  and  other  parties,  (u-nerally  speaking,  the  assignecH 
of  a  bankrupt  tenant  would  be  entitled  to  whatever  Interest  in  the  llxtureH 
the  bankrupt  Inmself  possessed.  See  Trappea  v.  Jlarter,  li  Tyrwli.  C,o:\;  but 
6  G.  4,  cap.  16,  sec.  72,  [now  repealed,  but  In  substance  re-enactetl  by  the  4G 
&  47  Vict.  c.  52,  s.  44,]  entitled  them  to  goods  and  chattels  wlddi  he  had 
at  the  time  of  bankruptcy  in  his  possession,  ordering,  or  disposition,  by  the 
consent  and  permission  of  the  true  owner,  and  of  whicli  he  was  reputed 
owner;  and  it  lias  sometimes  been  conteiiiled,  that  this  enactment  [might J 
have  the  efl'ect  of  entitling  them  to  llxlures.  The  chief  decision  on  thl.s 
subject  is  J/orti  v.  liakfr.  '.»  I-ast,  21."»,  which  is  frecpiently  cited,  and  so  <om- 
pletely  falls  within  the  definition  of  a  leading  case,  that  It  Is  printed  next  to 
that  of  Ehoes  v.  Maice  in  this  collection.  In  Wfi-tmi  v.  Woodmrk,  7  M.  &  \V. 
14,  a  terra  ceased  by  proviso  on  the  tenant's  liankruptcy,  and  It  wjls  held,  that 
the  assignee  could  not  justify  the  removal  of  a  trade  fixture  after  the  «'xpira- 
tion  of  a  reasonable  time  for  that  purpose.  Whether  they  might  have 
removed  it  within  such  reasonable  time  was  not  decided. 

[In  Stansjield  v.  Thr  Mmjor  i»f  J'ortsmnuth,  4  ('.  B.  N.  S.  TJO.  a  lease, 
■wliich  was  determinable  on  the  bankruptcy  of  the  lessee,  contained  a  proviso 
tliat  none  of  the  machinery  set  uj)  on  the  premises  during  the  term  for  the 
purpose  of  carrying  on  a  particular  trade  should  be  removed,  but  should,  on 
the  determination  of  the  lease,  lielong  to  the  lessors;  but  that  this  stipulation 
should  not  apply  to  machinery  set  up  for  any  other  purpose,  which  might  be 
removed  by  the  tenant  during,  or  at  the  expiration  t)f ,  the  term.  The  tenant 
liecame  imnkrupt,  and  the  lessor  re-entered.  It  was  held,  that  the  assignees 
in  l)ankruptcy  of  the  lessee  were  entitled  to  enter  upon  the  prendses  for  the 
purpose  of  removing  the  fixtures  other  than  trade  llxtures,  and  to  a  rejwon- 
able  time  for  that  purpose. 

After  some  ditlerence  of  opinion  it  was  decided  that  where  the  trustee  of  a 
bankrupt  or  li(|Ui(lating  tenant  ilisdaimed  the  lease  under  s.  2o  of  the  Bank- 
ruptcy Act,  1^09,  he  couUl  not  remove  fixtures  either  before  or  after  the 
<lisclaimer,  since  by  the  disclaimer  the  lease  was  to  be  "  deemed  to  have  .been 
surrendered"  from  tlie  date  of  the  adjudication,  and  the  effect  of  a  surrender 
was  to  deprive  the  tenant  of  any  right  to  subsequently  remove  fixtures ;  Ez 
parte  Brook,  10  Ch.  D.  100,  48  L.  J.  Bkcy.  22;  (reversing  A>  partf  Foster, 
47  L.  J.  Bkcy.  101)  ;  Ex  parte  Glegg,  19  Ch.  D.  7.  .Il  L.  J.  Ch.  3(17;  but  the 
law  has  been  altered  by  the  Bankruptcy  Act,  1S83,  s.  55,  which  makes  the 
disclaimer  operate  from  tlie  date  thereof,  and  the  court  in  giving  leave  to 
disclaim  will  direct  that  the  landlord  shall  either  take  tlie  fixtures  at  a  valua- 
tion, or  allow  the  trustee  a  reasonable  time  to  remove  them.  In  re  Moser,  13 
Q.  B.  D.  738.] 

Where  the  assignees  of  a  bankrupt  lessee  severed  and  sold  fixtures  which 
had  been  assigned  to  the  plaintiff,  it  was  held,  in  an  action  of  trespass  against 
them,  that  the  proper  measure  of  damages  was  the  value  of  the  fixtures 
annexed  to  the  premises,  inasmuch  as  they  might  have  sold  them  with  the 
lease  of  the  house,  and  so  have  realized  that  value  for  them.  Thompson  v. 
-Pettil,  10  Q.  B.  101.     [See  also  as  to  when  fixtures  passed  to  assignees  in 


ELWES   V.   ]MAWE.  1455 

bankruptcy,    Waterfall  v.  Penistone,  6  E.  &  B.  876,  and  Walmsley  v.  Milne, 
7  C.  B.  N.  S.  115.] 

G.  As  between  Heir  and  Devisee  it  is  held  that  if  tenant  for  life  or  in  tail 
devise  fixtures,  his  devise  is  void,  he  having  no  power  to  devise  the  realty  to 
which  they  are  incident,  Shep.  Touchst.  469,  470;  4  Co.  62;  unless  indeed 
they  be  such  things  as  would  pass  to  his  executor.  [See  as  to  what  will  pass 
by  such  a  devise  as  against  the  remainderman,  D'Eyncourt  v.  Grerjory,  L.  B. 
3  Eq.  382.]  On  the  other  hand,  the  rights  of  the  devisee  of  lands  against  the 
executor  of  the  devisor  would  seem,  on  principle,  to  be  the  same  as  those  of 
the  heir  in  whose  place  the  devisee  stands. 


The  term  fixtures,  in  its  proper  sense,  is  confined  to  personal 
chattels,  which,  though  they  have  been  annexed  to  the  freehold, 
are  removable  at  the  will  of  the  person  who  annexed  them ; 
Chitty  on  Contracts  (11th  Am.  Ed.)  489.  The  character  of 
the  property,  Avhether  personal  or  real,  in  respect  to  fixtures, 
is  governed  very  much  by  the  intention  of  the  owner,  and  the 
purpose  to  which  the  erection  is  to  be  applied ;  2  Kent  13th 
Ed.  343.  Whatever  v/as  fixed  to  the  freehold  perpeteui  usiis 
was  deemed  a  part  of  the  res  immohiles  of  the  civil  law.  Id. 
347,  and  this  perpetuity  in  the  use  of  the  chattel,  m  connection 
with  the  freehold,  furnishes  an  important  consideration  in 
determining  the  question  as  to  whether  the  chattel,  in  any 
given  case,  is,  or  is  not,  a  failure.  Whether  the  fixture  in  any 
given  case  is  removable  depends  largely  upon  the  relation  of 
the  parties  to  property  and  to  each  other. 

"  It  is  impossible,"  says  Chief  Justice  Morton,  in  the  case  of 
Hubbell  V.  East  Cambridge  Savings  Bank,  132  Mass.  447,  "to  lay 
down  any  precise  test  by  which  to  determine  whether  machinery 
or  other  articles  attached  to,  or  used  in  a  building,  become  part 
of  the  realty.  It  depends  upon  the  relation  of  the  parties,  the 
character  of  the  articles,  their  adaptation  to,  and  the  manner 
in  which  they  are  annexed  to,  or  used  in  the  building,  and 
generally  upon  the  circumstances  of  each  case  as  indicating 
the  intention  of  the  parties."  See  81  N.  Y.  38 ;  42  Mich.  314 ; 
46  Tex.  551 ;  40  Mich.  693.  In  view  of  this  statement  of  the 
law,  it  need  surprise  no  one  to  find  irreconcileable  conflict  in 
the  many  decisions  of  the  numerous  courts  of  this  country  on 
this  branch  of  the  law  of  property.  The  right  of  a  tenant  to 
sever  chattels  which  he  has  annexed  to  the  realty  is  not  incon- 
sistent with  the  doctrine  that  until  severed  the  chattels  are 
a  part  of  the  realty.     The  contrary  view  has  been  a  source  of 


1456  KL\vi:s   \.  MAWi:. 

confusions  in  decisions  ii[)i)u  this  subject.  In  every  caae  the 
relation  of  the  parties  to  tlic  property  and  to  eiieh  other  inusl 
be  carefully  observed.  In  the  numerous  ciuses  found  in  Anieriian 
Reports,  controversies  respecting  fixtures  have  arisen  between 
vendors  and  vendees,  inorti^a^'ors  and  niorti,M^'ees,  landlords 
and  tenants,  executors  and  heirs  or  devisees,  executors  and  re- 
maindermen or  reversioners,  niortj^agees  of  the  realty  and 
mortgagees  of  the  personalty,  and  between  attaeiiing  ereditois 
or  claimants  under  mechanics'  lien  laws  and  others.  The  rases 
upon  this  l)ranch  of  the  law  are  very  numerous,  and  no  attempt 
has  been  made  to  cite  ihein  all  in  this  note ;  l>ut  referenee^* 
have  been  made  in  sutlicient  nund)er,  it  is  i)elieveil,  to  show  the 
state  of  the  law  in  all  parts  of  the  country  where  decisions  on 
this  subject  have  been  rendered.  (  itations,  with  few  exceptions, 
are  limited  to  decisions  of  the  courts  of  linal  resort  in  each 
jurisdiction. 

The  object  or  purpose  of  the  annexation  —  ita  influence  in 
the  determination  of  the  question  as  to  whether  the  chattel  has 
become  a  fixture.  —  Wall  c.  ilimls,  4  (»ray  -Ot)--Tl  ;  iJliss  v. 
Wliiliicy,  1>  Allen  114  ;  Parsons  v.  Copelund,  :38  Me.  '^38  ;  Capeii 
V.  Peckiiam,  35  Conn.  88;  TeatY  r.  Hewitt,  1  Ohio  St.  511  ;  I'ti- 
kins  V.  Swawk,  43  Miss.  348;  Ottumwa  Woolen  Mill  Co.  i'. 
llawley,  44  Iowa  57;  Chapman  r.  I'nion  Life  Insurance  Co.,  4 
Bradw.  (111.)  '2\) ;  Taylor  r.  Collins,  51  Wis.  1:23;  Strickland  r. 
Parker,  54  Me.  2(U'k  Whether  a  chattel,  detaciiable  from  the 
realty,  without  injury,  has  become  an  immovable  lixture,  may 
depend  upon  agreement  or  special  relation  of  the  parties ; 
Warner  v.  Kenning,  25  Minn.  173.  An  article  by  severance 
and  the  understanding  of  parties  may  become  a  chattel  per.sonal, 
which  would  otherwise  be  a  lixture  ;  Sampson  v.  Graham,  DG 
Pa.  St.  405. 

The  relation  of  the  party  to  the  freehold  making  the  annexation. 
—  J^apham  r.  >i'ortoii,  71  Me.  83;  Towne  c.  Fiske,  127  Ma.ss. 
125;  Northern  Central  R.  Co.  v.  Canton  Co.,  30  Md.  347; 
Hill  V.  Sewald,  53  Pa.  St.  271 ;  Strickland  v.  Parker,  54  Me-. 
263 ;  Wall  v.  Hinds,  uhi  supra. 

A.,  the  owner  of  a  lot  of  land,  entered  into  a  written  con- 
tract to  sell  the  same  to  C,  with  the  further  agreement  that  C. 
was  to  build  a  house  thereon.  A  small  wooden  house  was,  in 
pursuance  of  the  agreement,  built  on  the  lot  and  rested  on 
wooden  blocks.    The  builder  subsequently,  without  A.'s  consent. 


ELWES   Y.   MAWE.  1457 

removed  the  house  from  the  lot.  Held,  that  while  the  house 
stood  upon  the  lot  it  was  part  of  the  realty  and  belonged  to 
A.,  and  that  after  it  was  moved  off  it  became  a  personal  chattel, 
but  yet  remained  A.'s  property ;  Central  Br.  R.  Co.  v.  Fritz,  20 
Kan.  430.     See  11  Cush.  11 ;  7  Gray  26. 

The  adaptability  of  the  chattel  annexed  to  permanent  use  on  the  land 
or  in  the  building  to  which  it  is  annexed.  — The  Railway  Sav.  Inst. 
V.  The  Irving  St.  Bap.  Ch.,  36  N.  J.  Eq.  61 ;  Allen  v.  Mooney, 
180  Mass.  155:  Corcoran  v.  AVebster,  50  Wis.  125;  Town  v. 
Firth,  uhi  supra  ;  Ferris  v.  Quimby,  41  Mich.  202.  In  Allen  v. 
Mooney,  uhi  supra,  it  was  held  to  be  a  question  of  fact  or  mixed 
question  of  fact  and  law  whether  a  portable  furnace,  set  on  a 
brick  foundation,  with  the  pipes  and  registers  connected  there- 
with, is  so  placed  in  a  house  upon  mortgaged  land  as  to  become 
a  part  of  the  realty,  —  the  furnace  having  been  placed  in  the 
house  by  the  owner  and  adapted  for  use  therein. 

The  manner  of  annexation,  though  an  important  fact  to  be  consid- 
ered, yet  it  does  not  supply  a  conclusive  test  by  which  to  determine 
whether  the  given  article  is  or  is  not  a  removable  fixture. —  Van  NesS 
V.  Pacard,  2  Pet.  137  ;  Holmes  v.  Tremper,  20  Johns.  29  ;  Dame 
V.  Dame,  38  N.  H.  429 ;  Curtiss  v.  Hoyt,  19  Conn.  165 ;  Barnes 
V.  Barnes,  6  Vt.  388 ;  Smith  v.  Benson,  1  Hill  176 ;  Kimball  v. 
Grand  Lodge  of  Masons,  131  Mass.  59  ;  Leonard  v.  Stickney, 
131  Mass.  541.  In  Goddard  v.  Chase,  7  Mass.  432,  it  was  held 
that  iron  stoves  fixed  to  the  brick  work  of  the  chimneys  of  the 
house  become  a  part  of  the  realty  and  pass  with  it  under  a 
levy  of  an  execution.  This  case  has  been  doubted,  and  the 
facts  are  too  imperfectly  reported  to  make  the  decision  one  of 
much  value  as  an  authority.  Ferry-boat  with  chains  and  buoys 
held  not  to  be  fixtures;  Cowart  v.  Cowart,  3  Lea  (Tenn.)  57. 

It  is  rather  the  permanent  and  habitual  use,  and  not  the  manner 
of  annexation,  that  determines  the  character  of  the  articles  annexed. 
—  Cook  V.  Champlain  Trans.  Co.,  1  Den.  91 ;  Brennan  v.  Whit- 
aker,  15  Ohio  446;  Walker  v.  Sherman,  20  Wend.  636; 
Blethen  v.  Towle,  40  Me.  310 ;  Ward  v.  Kilpatrick,  85  N.  Y. 
413.  In  this  case  mirror  frames  designed  by  the  owner  of  the 
building  to  which  they  were  attached,  for  permanent  use,  were 
held  to  be  a  part  of  the  realty.  See,  also.  Harmony  Building 
Association  v.  Berger,  99  Pa.  St.  320.  Temporary  severance 
not  intended  to  be  permanent  does  not  divest  the  article  of  its 
characteristic  as  a  fixture ;  Williamson  v.  New  Jersey  Southern 


1458  EL  WES    V.    MA  WE. 

K.  U.  Co.,  29  N.  J.  Eq.  311 ;  Patton  v.  Moore,  1'".  W.  \':i.  ilH 
(see  63  Ga.  490).  Engines,  ears  and  rolling  stoek  of  a  railroad 
treated  as  fixtures;  MeMillen  v.  Fish,  1«)  W.  Va.  010.  So  ma- 
chinery in  a  woollen  faetory  ;  T^yle  v.  Palmer,  42  Mieh.  314. 

To  constitute  an  article  a  fixture,  it  need  not  necessarily  be 
actually  fastened  to  the  freehold.  —  Alvord  Carriage  Co.  v. 
(ik-asoii,  3t>  Cttnn.  S<) ;  Cajji'ii  r.  Peckham,  nfn  xnpni  ;  State  v. 
Northern  Central  R.  Co.,  18  Md.  193;  Minnesota  Co.  v.  St. 
Paul  Co.,  2  Wall.  G45,  note  ;  Farrar  v.  Staekpole,  0  Greeid. 
157  ;  Snedeker  v.  Warring,  2  Kern.  170  ;  Kowand  i'.  Anderson,  33 
Kan.  264 ;  Ilackett  v.  Amsden,  57  Vt.  432 ;  Voorhis  v.  Freeman, 
2  Watts  &  S.  116;  Pyle  v.  Pennock,  Id.  390.  This  class  of 
cases  is  sometimes  spoken  of  as  eases  of  constructive  annexation ; 
Morris's  Appeal,  8S  Pa.  368.  Hails  and  hrit^ks  do  not  U'eome 
fixtures  until  actually  or  constructively  annexed  to  tlic  free- 
hold; Tlnveat  r.  Stamps,  67  Ala.  96.  Hoards  used  as  a  perma- 
nent floor  in  a  corn  barn,  and  stone  posts  on  a  farm  to  be  usi-d 
for  fences  are  fixtures;  Ilackett  v.  Amsden,  .")7  \'t.  432  A:  641  ; 
see  Rowand  v.  Andcison,  33  Kan.  2iil. 

As  between  landlord  and  tenant  the  law  regards  with  peculiar 
favor  the  right  of  the  tenant  to  remove  articles  annexed  by  him  to 
the  freehold  during  his  tenancy.  —  Wall  r.  Hinds,  4  Gray  270; 
Galliehl  v.  Ilapgood,  17  Pick.  34;  Miller  v.  Baker,  1  Met.  27; 
Winslow  V.  Merchants'  Ins.  Co.,  4  Met.  306 ;  Pellenz  v.  Buller- 
dieck,  13  La.  Ann.  274 ;  18  La.  Ann.  614  ;  Finney  v.  Watkins,  13 
Mo.  291.  In  Aml3s  v.  Hill,  10  Mo.  App.  108,  the  court  lield  a 
fixture  is  removal)le  when  the  premises  will  be  in  as  good  con- 
dition after  removal  as  before,  and  these  questions  are  in  all 
cases  for  the  jury.  In  Deane  v.  Hutchinson,  40  N.  .1.  K^\.  S3, 
it  was  held  that  a  building  erected  by  a  tenant  on  leased  land 
was  not  removable  as  a  trade  fixture,  liis  lease  containing  no 
provision  for  such  removal.  This  seems  to  be  a  limitation  of 
the  tenant's  right  of  removal,  which  will  not  be  found  in  the 
decisions  of  courts  generally.  A  building  may  as  well  be  a 
trade  fixture  as  a  piece  of  machinery  placed  within  it. 

Li  the  case  of  King  v.  Johnson,  7  Gray  239,  Bigelow,  J., 
states  succinctly  the  general  rule  of  the  common  law  to  be, 
"that  things  affixed  to  the  realty  become  part  thereof,  and 
belong  to  the  owner  of  the  soil."  He  also  gives  '•  the  reasrm 
why  a  tenant  is  allowed  to  remove  structures  erected  for  pur- 
poses  of  trade   or  convenience,   aflixed  by  him  to  the   realty 


ELWES  V.   MAWE.  1-*^^ 


during  his  tenancy;  it  is  because  havmg  paid  as  rent  a  full 
equivalent  for  the  use  of  the  premises  as  demised,  it  .vmild  be 
inequitable  to  compel  Mm  to  forfeit  articles  at  the  end  of  the 
term  which  he  had  procured  for  his  own  use,  and  at  his  own 
expense  "  But  in  that  case  the  court  decided  that  a  person 
occupyino-  land  under  an  agreement  with  the  owner  to  pur- 
chase pa'yino-  no  rent,  has  not  a  tenant's  right  to  remove  a 
fixtui'e  he\as  placed  on  the  land.  See  McLaughlin  ..  Nash,  14 
All       1  Qr* 

The  fixtures  which  a  tenant  may  remove  are  (1)  those  put 
up  for  ornament  or  the  more  convenient  use  of  the  demised 
premises,  and  (2)  trade  fixtures;  such  as  cisterns,  sinks,  and  gas 
nipes-  Wall  V.  Hinds,  uhi  supra;  a  padlock  for  securing  a 
corn-barn  and  movable  boards  fitted  and  used  for  corn-bms ; 
Whiting  ..  Brastow,  4  Pick.  310.  Trees  and  shrubs  on  land 
demisel  and  used  as  a  nursery  garden ;  Miller  .  Baker  1  Met. 
273  Platform  scales;  Bliss  v.  Whitney,  9  Allen  114.  A 
wooden  ice-house;  Antoni  ..  Belknap,  102  Mass.  193.    Bowling 


alleys  with  their  usual  appurtenances;  Id.  201.     A  glass  ease 
case  of  drawers,  a  mirror  and  gas  fixtures  procured  by  a  tenant 
for  an  eating-saloon  ;  Guthrie  v.  Jones,  108  Mass.  191. 

Counter,  shafting,  pulleys,  hangers  and  belts,  a  Portable  fur- 
nace, and  steam  pipes;  Holbrook  v.  Chamberlm,  116  Mass.  155. 
See  Talbot  v.  Whipple,  14  Allen  177 ;  Kimball  «.  Grand  Lodge 
of  Masons,  131  Mass.  69.     A  pump  placed  in  a  well  by  a  tenant, 
he  n^ay  remove  ;  MeCracken  ..  Hall,  7  Ind.  30^    A  new  bo.Ier, 
back  stand,  and  valve  put  in  a  mill;  Mason  ..  Fenn,  13  11.  5-5 
A  ball-room  erected  by  the  lessee  of  an  inn  ;  Omburyt..  Jones, 
19  N  J  284.    A  still  set  up  on  land  of  the  lessor  by  the  lessee ; 
Pillow  'v.  Love,  5  Hayw.  (Tenn.)  109.     Buildings  erected  by 
lessees  upon  vacant  lots  under  "ground  leases     are  by  a  cus- 
tom in  the  city  of  Milwaukee  removable  as  fixtures;  Keogh  .. 
Daniell  12  Wis.  163.     Fixtures  of  a  saw-mill ;  Stokoe  v.  Upton, 
40  Mich.  681.     See  McAuliffe  ».  Mann,  37  Mich.  639. 

A  steam  engine,  machinery,  and  fixtures  attached  to  the  soil 
by  a  lessee,  for  the  purpose  of  hoisting  coal  from  mmes  situ- 
ated thereon,  including  all  boxes  and  other  necessary  WP^"^ 
connected  therewith,  become  fixtures  ;  Dobschuetz  ..  Holliday, 
82  111.  871,  876  ;  Ege  ..  KiUe,  84  Pa.  St.  333.  Mirrors  set  m 
the  wall  of  a  building  by  making  recesses  therein,  which  re- 
cesses would  be  left  rough  if  the  mirrors  were  removed,  will  be 


14(10  KLWKS    V.    MAWK. 

considered  as  part  of  tlio  Ireeholil ;  .M;itki»'  /•.  Smith,  '»  La.  Ann, 
TIT.     Tliis  case  arose  under  the  ('<»du  (»f  La.  Arts,  4.'>'.>,  ItlO. 

Tlic  rule  as  to  the  rii^dit  of  tenants  to  niiiove,  as  jjfiierally 
adoi)ted  in  the  courts  of  this  country,  is  stated  hy  Story,  .L,  in 
giving  the  opinion  of  the  court  in  Van  Ness  r.  i'aeani,  2  IVt. 
140:  "  The  (question  whether  reniovahh'  or  not  «h)es  not  tle|>end 
upon  tljo  form  or  size  of  the  huihhng,  whi-tlier  it  has  ii  hrick 
foun(hition  or  not,  or  is  one  or  two  stories  high,  or  lias  a  hrick 
or  otlier  chimney.  The  soh;  question  is,  whether  it  is  designed 
for  [)urposes  of  trade  or  not. 

The  foHowing  eases  ilhistmte  \ annus  aspci-ts  of  the  rights  of 
Lindlord  and  ten;ints  as  to  fixtures:  MiUer  r.  IMumh,  ♦»  Cowcn 
60') ;  Kittredge  v.  Woods,  "  N.  1 1.  oOo  :  I)esj)iitch  Line  v.  Hcllamy 
^[fg.  Co.,  12  N.  IL  20');  Powell  r.  Monst.ii  Mfg.  Co.,  3  Mason 
4r)();  F;irrar  r.  Staekpole,  ♦>  Greeiil.  l.')4;  Voorhis  v.  Freeman,  3 
Watts  »!t  S.  lit);  Swift  r.  Thompson,  !>  Conn.  «'•:? ;  Itohinson  r. 
Wright,  2  MacArthur  04  (1).  ('.). 

A  lessee  who  accepts  a  new  lease  of  tlu;  demised  prcmi.scs 
before  the  expiration  of  the  first  term,  the  new  term  to  com- 
iiimce  at  the  close  of  the  first,  lo.ses  his  right  to  remove,  at  the 
end  of  the  first  term,  fixtures  he  had  placed  on  the  premises 
before  the  execution  of  the  new  lease,  if  there  Wi  no  reservation 
in  tlie  new  lea.se  of  his  right  of  removal  ;  Watris.s  r.  National 
r>aiik  of  Cambridge,  124  Mass.  oTl.  Hut  in  Kerr  r.  Kingsbury, 
o'.»  Mich.  150,  it  was  held  that  the  tenant's  right  of  removal  eon- 
tiuucd  under  the  new  lea.se.  See  Marks  v.  Ryan,  03  Cal.  1<»T. 
One  deriving  title  to  demised  premises,  while  the  tenancy  ex- 
ists, under  a  mortgage  given  by  the  lessor  subsequent  to  the 
lease,  has  no  other  or  greater  rights  as  agjiinst  the  tenant  than 
the  lessor  had  :  Globe  Marble  Mills  v.  Quinn,  T'"*  N.  V.  '2-\. 

The  law  of  fixtures  as  between  mortgagor  and  mortgagee.  — 
Machinery  which  may  be  easily  disconneete(l  from  the  fri'eli(dd 
and  used  in  any  other  building  does  not  pass  to  the  mortgagee 
of  the  freehold,  absolutely  :  Gale  v.  Ward,  14  Mass.  3')2  ;  Taylor 
V.  Townsend,  8  Mass.  411.  Machines  adapted  for  use  in  any 
building  in  which  they  can  be  put,  secured  in  position  by  bolts, 
&;c.,  and  capable  of  being  removed  without  injury  to  themselves 
or  to  the  building,  do  not  necessarily,  as  matter  of  law,  pass 
under  a  mortgage  of  the  building  and  land  on  which  it  stands ; 
Maguire  v.  Park,  140  ^Nlass.  21 ;  Carpenter  r.  Walker,  Id.  410. 
A  chattel  mortgage  on  machinery  in  a  building  was  given  in 


ELWES  V.   MAWE. 


14G1 


contemplation  of  the  same  being  annexed  to  the  realty.  After 
it  was  annexed,  a  mort.c^age  of  the  land  and  bnilding  was  given. 
Held,  that  the  second  mortgagee  conld  hold  the  machniery 
against  the  first  mortgagee ;  Pierce  v.  George,  108  Mass.  78. 
See  Adams  v.  Beadle,  47  Towa  439.  See  Ridgeway  Stove  Co. 
V  Way,  141  Mass.  557.  Machinery  so  attached  to  mortgaged 
premise's  as  to  be  a  part  of  the  freehold  as  between  mortgagor 
and  mortgagee,  cannot,  by  any  agreement  between  the  mortga- 
gor and  a  subsequent  lessee,  be  converted  into  personalty,  so  as 
to  affect  the  rights  of  the  mortgagee  ;  Thompson  v.  Vinton,  121 
Mass.  139.     See  Robertson  v.  Corsett,  39  Mich.  777. 

A  mortgage  of  a  building  covers  fixtures  intended  to  perma- 
nently increase  the  value  of  the  building  for  occupation,  but 
not  machines  incidental  merely  to  the  business  carried  on  in  the 
building  at  the  date  of  the  mortgage ;  McConnell  v.  Blood,  123 
Mass.  47.  Whether  a  portable  furnace  is  so  placed  in  a  house 
as  to  be  covered  by  a  mortgage  of  the  land  is  a  mixed  ques- 
tion of  law  and  fact ;  Allen  v.  Mooney,  130  Mass.  155. 

Iron  rails  so  placed  on  the  road-bed  of  a  railway  company  as 
to  be  part  of  the  realty,  yet  by  agreement  between  the  vendor 
of  the  rails  and  the  company  they  may,  when  so  placed,  retani 
their  character  as  personal  property  ;  but  such  agreement  can- 
not affect  the  rights  of  a  prior  mortgagee  of  the  railroad  ;  Hunt 
V.  Bay  State  Iron  Co.,  97  Mass.  279.  See  130  Mass.  547 ;  127 
Mass.  542;  132  Mass.  447;  Cooper  v.  Davis,  15  Conn.  556; 
Burnside  v.  Twitchell,  43  N.  H.  390. 

Fixtures  placed  in  a  building  by  the  mortgagor,  after  the  exe- 
cution of  the  mortgage,  become  part  of  the  realty  and  cannot 
be  removed  by  him  as  against  the  mortgagee ;  Wood  v.  Whelan, 
93  111.  153 ;  Winslow  v.  Merchants'  Ins.  Co.,  4  Met.  306 ;  Cole 
"v.  Stewart,  11  Cush.  181 ;  Wight  v.  Gray,  73  Me.  297 ;  Clore  v. 
Lambert,  78  Ky.  224;  Smith  Paper  Co.  v.  Servin,  130  Mass. 
511 ;  Hamilton  t'.  Huntley,  78  Ind.  521 ;  Jones  v.  Detroit  Chair 
Co.,' 38  Mich.  92.  See  Richardson  v.  Copeland,  6  Gray  536; 
Lynde  v.  Rowe,  12  Allen  100. 

Gas  chandeliers  and  pendant  gas  burners,  capable  of  being 
detached  without  injury  to  the  pipe  or  building,  not  covered  by 
a  mortgage  of  the  realty  ;  ISIontague  v.  Dent,  10  Richardson 
(S.  C.)  135;  Vaughen  v.  Haldeman,  33  Pa.  St.  522;  Chapman 
V.  Union  Life  Ins.  Co.,  4  Bradw.  (111.)  29;  Early  v.  Burtis,  40 
N.  J.  Eq.  501. 


1462  ELWKS    V.    MA\VK. 

A  mortgage  of  an  entire  line  of  a  railroad,  with  all  tlie  tolls 
and  revenues  thereof,  covers  not  only  the  line  of  the  road,  but 
all  the  rolling  stock  and  fixtures,  wliether  movable  or  immova- 
ble, essential  to  the  production  of  tolls  and  revenues ;  State  v. 
Northern  Central  R.  Co.,  18  Md.  104.  See  Arnohl  r.  Crowder, 
81  111.  56.  If  a  tenant  at  will  of  the  mortgagor  adds  lixtures  to 
the  mortgaged  premises,  his  right  of  removal,  after  the  mort- 
gfigee  has  taken  possession,  is  governed  by  the  rule  as  In-tween 
mortgagor  and  mortgagee,  and  not  as  between  landlortl  and  ten- 
ant; Lynde  i'.  Ilowe,  12  Allen  100.  A  planing  machine  put  into 
a  mill  after  the  execution  of  a  mortgage  of  the  latter,  and  rest- 
ing by  its  own  weight  on  the  floor  and  connected  with  tlio 
machinery  by  a  running  belt,  hidd  to  be  pei-sonal  property  and 
not  covered  by  the  mortgage  of  the  realty;  Wells  v.  Maph*s.  15 
Hun  90.  See  Hart  /•.  Sheldon,  *U  Hun  IW ;  Booraem  v.  Wood, 
27  N.  J.  E<i.  371  ;  Zeller  r.  Ad;im,  30  N.  J.  Kip  421  ;  Watson  v. 
Watson  Mfg.  Co.,  Id.  \s:\ ;  Wlu-.ler  r.  Bedell,  40  Mich.  61)3. 
See  Ferris  v.  (^uimby,  41  Mich.  202.  Cotton  machinery,  such  as 
spinning-frames  and  twisting-frames,  tlumgh  fasteneil  to  the 
floor  by  nails  or  screws,  held  to  Ik?  jiersonal  property  and  cov- 
ered by  a  chattel  mortgage  as  against  the  mortgagee  of  the 
realty;  Keeler  v.  Kceler,  31  N.  .1.  Va\.  181  ;  Hoidiereau  v.  Hobb, 
27  La.  Ann.  6/)7 ;  I'ope  v.  Jackson,  6")  Me.  162;  State  Savings 
Bank  v.  Kercheval,  65  Mo.  682.  A  shingle  machine  not  fastened 
to  the  floor  except  by  a  strip  to  prevent  its  slipping,  not  a  fix- 
ture; Wells  V.  M;4)les,  15  Hun  (N.  Y.)  '.»0 ;  Sisson  r.  Ilibbard, 
75  N.  Y.  542;  Morris's  Appeal,  88  Pa.  St.  368.  Articles  that 
would  otherwise  become  fixtures  may,  ])y  agreement  of  parties 
in  interest,  claim  the  character  of  j)ersonal  property;  Smith  v. 
Waggoner,  50  Wis.  155.  A  j)ortable  furnace  held  not  to  be  a 
fixture  as  between  mortgagor  and  mortgagee;  36  N.  J.  Eq.  61, 
452;  Wolford  v.  Baxter,  33  Minn.  12.  If  the  owner  of  mort- 
gaged land  places  upon  it  articles  so  that  they  become  a  part  of 
the  realty,  an  agreement  between  the  seller  of  the  articles  and 
the  mortgagor,  that  title  to  the  articles  shall  remain  in  the  seller 
till  paid  for,  will  not  prevent  the  mortgage  from  attaching  to 
them ;  Bass  Foundry,  &c.  v.  Gallentine,  00  Ind.  525. 

Vendor  and  vendee.  —  As  between  vendor  and  vendee,  sta- 
tionary niacliinery  placed  upon  the  premises  by  the  vendor,  and 
used  by  him  during  his  ownership  oi  the  freehold,  becomes  an 
irremovable  fixture ;  Harkness  v.  Sears,  26  Ala.  493.     The  ma- 


ELWES   V.    MAWE.  1463 

chinery  of  a  steam-flouring  mill  is  considered  part  of  the  realty, 
as  between  vendor  and  vendee,  but  otherwise  between  landlord 
and  tenant ;  McGreary  v.  Osborne,  9  Cal.  119.  Fixtures  an- 
nexed to  the  freehold  by  an  occupant,  and  on  an  executory  con- 
tract to  purchase  it,  become  a  part  of  the  realty ;  King  v. 
Johnson,  7  Gray  239 ;  Smith  v.  Moore,  26  111.  392,  which  the 
person  thus  annexing  the  fixtures  has  not  a  right  to  remove ; 
Westgate  v.  Wixon,  128  Mass.  304.  Fixtures  that  have  become 
part  of  the  realty  as  between  vendor  and  vendee,  pass  to  the 
vendee  free  from  the  lien  of  a  prior  chattel  mortgage  of  which 
the  vendee  has  no  notice  ;  Davis  v.  Buffum,  51  Me.  160 ;  Bring- 
holff  V.  Munzenmaier,  20  Iowa  513.  Nor  can  the  vendor  be 
permitted  to  limit  the  effects  of  his  deed  by  proof  of  a  parol 
reservation  of  the  fixtures ;  Noble  v.  Bosworth,  19  Pick.  314. 
Fixtures  to  a  gas  pipe  do  not  become  a  part  of  the  freehold  so 
as  to  pass  by  a  grant  of  the  latter ;  Shaw  v.  Lenke,  1  Daly  487 ; 
Heysham  v.  Dettre,  89  Pa.  St.  506.  See  Leonard  v.  Stickney, 
131  Mass.  541.  If  the  owner  of  unincumbered  real  estate  sells 
an  article,  which  as  a  fixture  is  a  part  of  the  realty,  the  sale 
operates  as  a  severance  of  the  fixture  and  the  vendee  has  a  right 
to  remove  it  as  a  chattel  personal;  Folsom  v.  Moore,  19  Me.  252 ; 
Freeland  v.  Southworth,  24  Wend.  191.  See  Towne  v.  Fiske,  127 
Mass.  125.  This  was  a  case  between  the  vendee  of  what  was 
claimed  as  a  fixture,  and  an  ofiicer  who  had  attached  the  article 
on  a  writ  in  favor  of  a  third  party ;  Turner  v.  Wentworth,  119 
]\Iass.  459.  This  case  arose  between  a  party  seeking  to  enforce 
a  mechanic's  lien  on  certain  furnaces  and  ranges  and  the  owner 
of  the  building  in  which  they  had  been  placed.  Held^  that  the 
question  whether  the  furnaces  and  ranges  were  fixtures,  and  so 
part  of  the  realty,  was  one  of  mixed  fact  and  law,  depending 
upon  whether  the  furnaces,  &c.,  were  sold  by  the  petitioner  as 
personal  property,  or  furnished  as  parts  of  the  house. 

A  bathing-tub  and  the  necessary  pipes  conducting  Avater  into 
it,  if  fastened  by  nails,  pass  to  the  vendee  of  the  house ;  Cohen 
V.  Kyler,  27  Mo.  122.  But  gas  fixtures,  candelabras,  chandeliers, 
&c.,  do  not  pass  to  the  vendee  as  2)art  of  the  realty ;  Rogers  v. 
Crow,  40  Mo.  91 ;  Fratt  v.  Whittier,  58  Cal.  126 ;  Terhune  v, 
Elberson,  3  N.  J.  L.  726;  Cross  v.  Marston,  17  Vt.  533.  A 
banker's  safe,  though  bricked  up  does  not  pass  by  a  deed  of  the 
realty ;  50  Texas  65.  Window  blinds  and  double  windows  pass 
by  deed  of  the  house  ;  Peck  v.  Batchelder,  40  Vt.  233.    A  sale  of 


14G4  KLWrs    \  .    MAU'K. 

the  land  held  to  i)ass  the  crops  ^rowiiipf  thereon ;  Planters'  Rank  v. 
Walker,  3  S.  cK:  M.4'l'.>:  ninfrn  in  I'lMinsylvania,  Smith  r.  Johnson, 

1  1'.  &  W.  471  ;  Kt'isel  v.  Karncst,  21  I'a.  St.  W.  Si-f  I'ickrns  v. 
Keed,  1  Swan  (Tenn.)  HO.  Maiiurt!  made  in  tin*  <-<uirs»'  of  lius- 
bandiy  upon  a  farm  is  piirt  of  tin-  friM-hold :    Stonr  r.   Prortor, 

2  I).  Chipman  (Vt.)  IIT);  Dunicls  v.  I'ond,  21  I'itk.  :>♦;;  :  «'i 
Greenl.  222;  Gallagher  v.  Sliiplcy,  24  Md.  4lS;  I'lumrr  v. 
riumer,  30  N.  H.  ooS.  See  Ruckman  v.  Ontwater,  2S  N.  .1.  I.. 
5H1. 

An  oroan  placed  in  a  n-ri'ss  tittt-d  for  it  in  a  thnrrh  lield  to 
1)(!  a  lixtnre  as  between  vendor  and  vendee;  Kofjei-s  v.  Crow, 
40  Mo.  01  :  Strickland  v.  Parker,  ;")4  Me.  2<;3 ;  Thomas  v.  Davis, 
70  Mo.  72.  riMiI)cr  trees,  ent  down  and  lyini,'  at  fnll  leii<,'th  on 
the  ground  where  they  i^rew,  will  pa.ss  hy  a  deed  of  the  kind; 
Hraekett  v.  (ioddard,  i'A  Me.  309.  So  growint,'  crops  :ind 
niannre  lyiJiGf  n[)on  the  laml,  feneintj  materials  on  a  farm, 
tliouo-h  temporarily  detaclied  hnt  with  no  intent  of  «liv»'rtinjj 
them  from  iheir  nse  ;  ({oodrieh  r.  Jones,  2  Hill  142.  So  hop 
poles  used  in  eidtivatincr  hops;  Bishop  v.  Bishop,  1  Kenan  123 
(N.  C).  What  is  in  its  nature,  otherwise  pei-sonal  prop«'rty, 
will  when  actually  or  constructively  attached  to  the  .soil,  hy  its 
use  or  intended  use,  become  a  j>art  of,  and  pass  by  a  deed  of 
the  realty;  Jenkins  v.  McCiirdy,  4S  Wis.  ♦»2S.  Cotton-ijin  and 
press  when  removable  without  injury  to  the  freehold  are  not 
fixtures  as  between  vendor  and  vendee;  McJunkin  f.  Dupree, 
44  Tex.  500.  See  Connor  r.  S(|uiers,  .')0  Vt.  <'>S0  :  Ci.leman  v. 
Stearns'  M'f'g  Co.,  38  Mich.  30. 

As  to  the  time  within  which  the  tenant  can  exercise  his  right  of 
removal  of  fixtures.  —  The  general  rule  is  that  it  nnist  be  done 
during  or  at  the  end  of  the  term;  Hinckley  v.  Black,  70  Me. 
473  ;  Rines  v.  Bachelder,  62  ]\Ie.  Oo  ;  Towne  v.  Fiske,  127  Miiss. 
125;  Torrey  v.  Burnett,  38  N.  J.  L.  457;  Fratt  v.  Whittier,  58 
Cal.  126;  Jenkins  v.  Mctkirdy,  4S  Wis.  628;  Overton  r.  Willis- 
ton,  31  Pa.  155.  See  20  Kan.  430 ;  Josslyn  v.  McCabe,  46  Wis. 
501 ;  Darrah  v.  Baird,  101  Pa.  St.  205 ;  31  Pa.  155.  A  tenant 
whose  lease  in  terms  gives  the  right  to  remove,  at  the  end  of  the 
tenn,  buildings  which  he  has  erected  on  the  demised  premises, 
may  exercise  that  right  within  a  reasonable  term  after  the  ex- 
piration of  the  term ;  Smith  v.  Park,  31  Minn.  70 ;  Griffin  v. 
Ransdell,  71  Md.  440  ;  Youngblood  v.  Eubank,  68  Ga.  If  ten- 
ant fails  to  exercise  his  right  of  removal  witliin  the  period  of 


EL  WES    V.    MA  WE.  1465 

his  term,  the  presumption  is  that  he  relinquishes  his  claim  to 
his  lessor,  but  this  presumption  may  be  rebutted ;  Railroad  v. 
Deal,  90  N.  C.  113.  The  tenant  may  remove  at  the  end  or  dur- 
ing the  continuance  of  his  term,  trade  fixtures  which  he  has 
annexed  to  the  freehold,  but  not  after  he  has  surrendered  pos- 
session ;  First  Sudbury  Parish  v.  Jones,  8  Cush.  184 ;  Burk  v. 
Mollis,  98  Mass.  55 ;  Haiiick  v.  Stober,  11  Ohio  482 ;  Davis  v. 
Moss,  38  Pa.  346;  Preston  v.  Briggs,  16  Vt.  124;  Moody  v. 
Aiken,  50  Texas  65.  See  Smith  v.  Park,  31  Minn.  70.  His  right 
of  removal  once  lost,  is  not  renewed  by  his  taking  a  subsequent 
lease  ;  Shej)ard  v.  Spaulding,  4  Met.  416 ;  Mclver  v.  Estabrook, 
134  Mass.  550.  See  Devin  v.  Doughert}^  27  How.  Pr.  455. 
When  the  term  is  uncertain  or  depends  upon  a  contingency,  as 
where  a  party  is  tenant  for  life,  or  at  will,  he  may  remove  fix- 
tures within  a  reasonable  time  after  the  tenancy  is  determined ; 
Watriss  v.  National  Bank,  ubi  supra;  Folsom  v.  Moore,  19  Me. 
252 ;  Mclver  v.  Estabrook,  134  Mass.  550.  In  this  last  case  a 
tenant  at  will  of  a  lessee  erected  a  building  on  the  land  with 
knowledge  and  consent  of  the  original  lessor,  Avith  the  under- 
standing that  the  tenant  at  Avill  could  remove  the  house  as 
a  trade  fijcture.  After  the  expiration  of  both  terms,  the  build- 
ing not  being  removed,  the  lessor  resumed  possession  of  the 
land  and  then  rented  the  same  with  other  land  to  the  former 
tenant  at  will.  Helcl^  that  the  tenant  at  will  could  not  then 
remove  the  building. 

There  is  a  class  of  cases  important  to  be  ruled,  wliich  point 
out  the  cUstinction  between  chattels,  which  have  been  so 
attached  to  the  freehold  as  to  become  fixtures,  and  so  for  the 
time  being  part  of  the  realty,  and  chattels  so  placed  upon  the 
land  of  another  as  to  remain  only  chattels  personal,  as,  when  a 
son  built  a  house  on  the  land  of  his  father  under  an  expectation 
that  the  father  would  devise  the  land  to  him,  it  was  held  that 
the  house  did  not  become  a  fixture,  but  remained  the  personal 
property  of  the  son ;  Wells  v.  Banister,  4  Mass.  513.  See 
Dame  v.  Dame,  38  N.  H.  429  ;  Barnes  v.  Barnes,  6  Vt.  388 ; 
Bewick  v.  Fletcher,  41  Mich.  625. 

Shelving  and  drawers,  placed  in  and  connected  with  a  build- 
ing under  a  license  from  the  owner  of  the  building  —  the  relation 
of  landlord  and  tenant  not  existing  between  the  parties  —  Avere 
held  to  remain  the  personal  property  of  the  persons  putting- 
them  in  the  building,  and  they  did  not  become  fixtures ;  Stout 


14G6  ELWKS    V.    MAWK. 

V.  Stoppel,  30  Minn.  5G ;  Sluipira  v.  Barney,  Id.  r>9;  Brown  v. 
Lillie,  G  Nev.  244;  Hill  v.  Sewuld,  .',3  Pa.  St.  271;  Kiism-H  i'. 
liicluirds,  1  Faiif.  (Me.)  429;  Pullun  v.  Bell,  40  Me.  'MA; 
Cresson  v.  Stout,  17  Johns.  110;  Kuyniond  r.  W'liitr,  7  (Dwcn 
319 ;  Tobias  v.  Francis,  3  Vt.  425. 

An  iron  boiler  placed  in  a  buildini^  by  a  tenant  at  will,  up»in 
a  foundation,  llie  ed^a's  ot"  tlie  brick  work  being  cemented 
before  the  Ixjiler  was  placed  thereon  so  as  to  keep  it  in  ])la(e, 
and  an  iron  tank  similarly  placed,  held  not  to  \>c  fixtures,  but 
that  they  remained  personal  property  of  the  tenant ;  Cooper  v. 
Jolmson,  143  Mass.  lOS;  Wolford  r.  Itaxter,  33  .Minn.  12; 
McKeage  v.  Hanover  Fire  Ins.  Co.,  10  Hun  239.  See  s,  c.  Si 
N.  Y.  38;  Sisson  v.  Hibbard,  7')  N.  Y.  042;  Early  v.  Burtis,  40 
N.  J.  Eq.  501. 

This  distinction  between  challels,  which  do  or  do  not  become 
chattels  real  as  distinguished  from  chattels  pei*sonal,  seems  not 
always  to  be  carefully  olwerved.  See  Northern  Central  K.  K. 
Co.  V.  Canton  Co.  of  Baltimore,  30  Md.  354  ;  Holmes  v.  Trem- 
per,  20  Johns.  29;   Wcthcrbee  v.  Foster,  5  Vt.  142. 

As  between  administrator  ami  heir  it  was  held,  that  a  heavy 
stove,  placed  by  the  intestate  in  a  chimney,  having  no  hreplace 
and  set  on  brick  work  so  that  it  was  doubtful  whether  it  could 
be  removed  without  disturbing  the  brick  work,  was  part  of  the 
realty;  Tuttle  v.  Robinson,  33  N.  H.  119. 


HORN  V.  BAKER. 


HILARY,  48  GEO.  Z.—IN  THE  KING'S  BENCH. 

[reported   9   EAST,    215.] 

A.^  B.  and  C,  partners  and  distillers,  occupied  certain  premises 
leased  to  A.  and  another,  and  used  in  common  in  the  trade,  the 
stills,  vats,  and  utensils  necessary  for  carrying  it  on,  the  prop- 
erty of  ivhich  stills,  S^c,  afterwards  appeared  to  be  in  A.  On 
the  dissolution  of  the  partnership,  ivhich  was  a  losing  concern, 
it  was  agreed  that  C.  and  one  J.  should  carry  on  the  business 
on  the  premises ;  and  by  deed  between  the  two  last  and  A.  it 
was  covenanted  and  agreed  that  A.  should  withdraw  from  the 
business,  and  permit  C.  and  J.  to  use,  occupy,  and  enjoy  the 
distil-house  and  premises,  paying  the  reserved  rent,  ^c,  atid 
the  several  stills,  vats,  and  utensils  of  trade  specified  and  Slum- 
bered in  a  schedule  annexed,  in  consideration  of  an  annuity  to 
be  paid  by  C.  and  J.  to  A.  and  his  wife  and  the  survivor  ;  with 
liberty  for  C.  and  J.  on  the  decease  of  A.  and  his  wife  to  pur- 
chase the  distil-house  and  premises  for  the  remainder  of  A.'s 
term,  and  the  stills,  vats,  ^c,  mentioned  in  the  schedule  ;  and 
C.  and  J.  covenanted  to  keep  the  stills,  vats,  and  utensils  in 
repair,  and  deliver  them  up  at  the  time,  if  not  purchased  ;  and 
there  was  a  proviso  for  re-entry  if  the  annuity  were  two  months 
in  arrear.  Under  this,  C.  and  J.  took  possession  of  the  prem- 
ises, with  the  stills,  vats,  and  utensils,  and  carried  on  the  busi- 
ness as  before;  and  made  payments  of  the  annuity,  which  after- 
wards fell  in  arrear  more  than  two  months ;  but  A.^s  widow 
and  executrix  who  survived  him  did  not  enter,  but  brought  an 
action  for  the  arrears,  which  was  stopped  by  the  bankruptcy  of 
C  and  J.,  ivho  continued  in  possession  of  the  stills,  vats,  and 
utensils  on  the  premises. 

1467 


14G8  hoi:n    v.    iiAKtiu. 

On  a  question,  Whether  such  iitillif,  vatg,  and  uttngil»,  go  continu- 
in;/  in  pontsession  of  C.  and  J.  the  new  partnert,  and  u«ed  by 
them  in  their  trade  in  the  name  manner  an  they  had  been  by 
the  former  partners,  of  whom  A.  the  owner  watt  one^  passed 
under  the  stat.  21  Jac.  1,  r.  ll>,  sx.  10  }f-  11,  to  the  assiynees  of 
C.  and  J.  as  beiny  in  the  possession,  onltT,  and  <lisi>«»siti()n,  of 
the  bankrupts  at  the  time  of  their  bankruptry  as  if|uiteil  own- 
ers? and  nothiny  appearimj  to  the  world  to  rebut  the  presum/>- 
tion  of  true  ownership  in  the  bankrupts  arisiny  out  of  their 
possession  and  reputed  ownership  Of  which  reputed  ownership 
the  jury  are  to  judye  from  the  circumstances)  ;  held, 

1,  That  the  stills  which  were  Jiued  to  the  freehold  did  not  pass  to 
the  assiynees  under  the  words  ^'ooiLs  and  chuttcLs  in  the 
statute. 

■2.  That  the  vats,  .fv.,  which  were  not  so  fixed  did  pass  to  the 
assiynecx,  as  beiny  left  by  the  true  owner  in  the  possession, 
order,  and  disposition  (as  it  appeared  to  the  eye  of  the  world) 
of  the  bankrupts,  as  reputed  owners. 

8.  That  the  case  wouhl  hare  admitted  of  a  different  consideration 
if  there  had  been  a  usaye  in  the  trade  for  the  utensils  of  it  to  be 
let  out  to  the  traders ;  as  that  iniyht  hare  rebutted  the  presump- 
tion of  ownership  arisiny  from  the  possession  and  apparent 
order  and  disposition  of  them. 

This  was  an  action  to  recover  in  <huna^es  the  value  of  the 
interest  which  the  phiintiff  chiinied  in  certain  stills,  vats,  and 
utensils,  which  the  fii-st  count  of  the  declaration  stated  that 
she  was  entitled  to,  subject  to  the  use  thereof  hy  the  defendani> 
durinsf  her  life  ;  and  that,  l)eint^  so  entitled,  and  the  defendaiii.^ 
well  knowing-  the  same,  they  wrongfully  and  injuriously  broke 
and  destroyed  part,  and  sold  and  disposed  of  the  rest.  Tiie 
second  count  ^vas  in  trover  for  the  same  goods  ;  to  which  the 
defendants  pleaded  not  guilty ;  and  upon  the  trial  iK'fore  Lord 
Ellenborouyh,  C.  J.,  at  the  Middlesex  sittings  after  the  last 
Term,  a  verdict  was  found  for  the  plaintiff  for  1000/,,  subject 
to  the  following  case. 

The  plaintiff  is  the  widow  and  executrix  of  her  deceased 
husband  John  Horn,  who,  before,  and  at  the  time  of  making 
the  indenture  on  the  20tli  of  March,  1801,  after  mentioned, 
was  a  distiller  in  Southwark. 

The    defendants   are    the    assignees  of   Wm.    Horn    and    R. 


HORN    V.    BAKEK.  1469 

Jackson,  who  succeeded  John  Horn  in  the  business  of  a  dis- 
tiller, and  carried  on  the  same  until  they  became  bankrupts, 
as  after  mentioned.  At  the  time  of  making  the  said  indenture 
John  Horn  held  the  principal  part  of  the  messuages,  buildings, 
and  lands  whereon  he  had  carried  on  the  business  of  a  distiller 
in  partnership  with  Robert  Horn  and  William  Hoin,  and 
whereon  there  had  been  erected  a  rectifying  distil-house,  under 
a  lease  granted  to  him  and  R.  Jackson  (since  dead)  for  a  term 
which  expired  on  the  30th  of  December,  1804  ;  and  he  held 
other  parts  of  the  premises  under  another  lease  granted  to  him 
and  the  said  Richard  Jackson,  since  deceased,  for  a  term  which 
expired  on  the  24th  of  June,  1805  :  and  he  and  the  said  Richard 
Jackson,  now  deceased,  had  before  held  other  parts  of  the  prem- 
ises under  a  lease  for  a  term  which  expired  on  the  25th  of 
December,  1799.  The  above-mentioned  partnership,  which 
was  a  losing  concern,  expired  before  the  making  of  the  inden- 
ture hereinafter  mentioned ;  and  William  Horn,  at  the  time  of 
makino-  that  indenture,  and  at  the  death  of  John  Horn,  was 
and  now  is  indebted  to  the  estate  of  John  Horn  in  500^.  in 
respect  of  their  partnership.  By  indenture  dated  20th  of 
March,  1801,  between  John  Horn  of  the  one  part,  and  William 
Horn  and  Rd.  Jackson  (the  bankrupts)  of  the  other;  after 
reciting  the  said  several  leases,  and  that  at  the  time  of  making 
the  last  lease,  the  said  Rd.  Jackson  (deceased)  was  in  partner- 
ship with  John  Horn ;  and  that  John  Horn  had  lately  entered 
into  partnership  with  Wm.  and  Robert  Horn  for  a  term  then 
expired;  and  that  since  the  expiration  of  the  last-mentioned 
lease  the  premises  therein  comprised  had  been  used  and 
occupied  by  John,  Robert,  and  Wm.  Horn,  as  yearly  tenants ; 
and  that  the  partnership  between  John,  Robert,  and  Wm. 
Horn  had  before  the  execution  of  that  deed  been  dissolved  by 
mutual  consent;  and  that  it  had  been  agreed  between  John 
Horn  of  the  one  part,  and  Wm.  Horn  and  Rd.  Jackson  of  the 
other  part,  that  John  Horn  should  withdraw  from  the  business 
as  from  the  1st  of  March  then  instant,  in  favour  of  Wm.  Horn 
and  Rd.  Jackson,  and  permit  them  to  use,  occupy,  and  enjoy 
the  said  distil-house,  and  other  the  premises  mentioned  in  the 
indentures  of  lease,  and  the  several  vats,  stills,  and  utensils 
of  trade  therein  or  thereon,  and  which  vats,  stills,  and  utensils 
were  specified  in  the  first  schedule  written  under  that  inden- 
ture, in  consideration  of  an  annuity  of  600Z.  to  be  paid  to  John 


1470  »i«)i:N    V.   iiAKi:u. 

11(1111,  his  executors,  &f.,  (liiiiii«,'  lia-  lift-  of  liimself  and  VAinv- 
beLh  his  wile  (the  now  plaintilY)  ami  the  life  o(  the  Murvivor 
subject    to    terms    ixnd    comlitions    hereinafter    expressed;    uml 
rfcilim,'  larliier,  that  it  had  l)een  a^Meetl  that  the  debti*  duo  t«> 
John,  linlnil,  and   \\  111.  Horn,  a.s  late  it^partners,  and  uUo  all 
the  horses,   earls,  tliays,  and  casks,  of   tin-   late  eo-piirlnunihip 
(exrcpt   the   i'cttn,  xtillx,  tiinl  ut»  hmHh  mentioned  in   tiie  saitl   lii-jit 
schedule),  should  be  vahuMl  and  purihased  by  Wm.  Horn  and 
Kd.  Jackson;  and  that  a  valuation  had  U-en  made  ae.ordin^dy  ; 
by  which  it  ait[)eared  thai  smh  <lebls,  and  the  value  of  sueh 
horses,  «fcc.,  amount  to  Isl")/. ;    fur  payment  t)f  which  ii  Uinil 
had  been  ^nveii  by  Wm.  Horn  and   lUl.  Jackson  to  John   Horn; 
and   that    Wm.    Horn  and    Kd.  Ja«k.son,  by  another  Imnd,  had 
been  bouml  to  John  Horn  in  /)U00/.  eon«liti<»ne«l  for  [Miynient  of 
Ihf  annuity  of  «»()()/.  pt-r  annum  to  J«thn   Horn  f«>r  the  lives  of 
hiiii-^clf    and    his  wife    (the    plaintitT),    and    the    survivor;    he, 
John   Horn,  in   |)ursnanee  of  the  a^Meement,  and  in  eoiiMidera- 
lion  of  Ihf  two  bonds  and  the  covenants  and  aifreementw  after 
contained  on   behalf  of   Wm.  H«>rn  and   IM.  .buks«>n,  for  him- 
self, his  lu'iis,  executors,  «\:e.,  eoveuiinted  and  aj^reed  with  Wm. 
Horn    and    IM.    Jackson,  their    executoi-s,   administrators,  and 
assigns,  that  they,  "til  ami  trulif  pai/iivf  the  rtnt't  n'nerrfil  by 
the  several  recited  leases,  and  performitui  all  and  ifint/ular  thf 
covenants  and  aift'cfnifntu  therein  contained  on   the  lessees'  iind 
assi<]fnees'   parts,  and  also  dii///   and   reijularlif  paifinij  the   xaid 
annniti/  so   seemed    as    aforesaid,   shoidd    and    lawfully    might 
peaceablif  and  ijidetli/   hare,  hn/d,  use,  oceujnf,  pintnenn,  and  enjoj/ 
the  xaid  nieaxuai/e,  tenement,  distil-house,  and  premises  thereby 
(leiuised  and  mentioned  in  a  certain  deed-poll  indorse<l  on  the 
said  lirst  lease,  and  also  the  ttaid  xtillx,  vats,  and  thinijs  specified 
in  the  first  schedule,  during  the  lives  of  John  Horn  and  Kliza- 
bcth  Horn,  or  the  survivor,  without  any  let,  suit,  «S:c.,  of  John 
Horn,  his  executors,  &e.,  ov  any  person   lawfully  claiming  from 
him,  iSiC.      Wm.   Horn   and    Kd.  Jackson,  by    the  indenture  of 
agreement,  covenanted   to  [>ay  the  rent  reserved  by  the  leases, 
and  to  perform  the  covenants.       There  was  also  a  proviso  in 
that  indenture,  that,  in  case  the  annuity  should  he  in  arrear  for 
two   calendar   months,  John    Horn,  his  executors,   iff.,  mif/ht  re- 
enter the  disfil-house  and  premises,  and  the   same  with   all  and 
everif  the  stills,  vats,  a7id  thinr/s  mentioned  in  the  said  schedule 
have  again,  7'eposses8t   and  enjoy  as   in   his  former   eftate,   &c. 


HORN    V.    BAKER.  1471 

There  was  also  a  covenant,  that  upon  the  decease  of  the  sur- 
vivor of  John  and  Elizabeth  Horn,  Wm.  Horn  and  Rd.  Jack- 
son should  be  at  liberty  to  purchase  the  distil-house  and  prem- 
ises for  the  remainder  of  the  term  in  the  leases,  and  the  stills, 
vats,  and  things  mentioned  in  the  said  schedule.  And  another 
covenant  that  Wm.  Horn  and  Rd.  Jackson  should  keep  the 
said  stills,  vats,  and  utensils  in  repair ;  and  in  case  they  should 
not  purchase  the  same,  tliat  they  should  at  the  end  of  the 
agreement  deliver  them  up  to  John  Horn,  his  executors,  &c., 
in  good  condition,  reasonable  use  and  wear  excepted.  (Then 
followed  the  schedule  referred  to  of  the  different  stills  and 
vats,  numbered  in  order,  and  describing  the  quantity  in  gallons 
which  each  would  contain.)  The  case  further  stated,  that  Wm. 
Horn  and  Rd.  Jackson  took  possession  of  the  premises  immedi- 
ately on  the  execution  of  the  indenture  of  agreement,  and 
carried  on  the  trade  of  distillers,  and  from  time  to  time  paid 
the  interest  on  the  bond  and  the  annuity  to  John  Horn,  who 
died  about  four  years  ago,  and  who  by  his  will  gave  all  his 
property  to  his  wife,  the  plaintiff,  and  appointed  her  sole  execu- 
trix. Since  (a)  the  death  of  John  Horn  neither  the  annuity 
nor  the  interest  of  the  bond  for  1815Z.  have  been  regularly 
paid ;  but  the  plaintiff,  as  she  from  time  to  time  was  in  want 
of  money,  and  notwithstanding  the  annuity  and  interest  might 
not  then  be  due,  apj^lied  to  Wm.  Horn  and  Rd.  Jackson,  who 
paid  her  different  sums  on  account  of  such  annuity  and 
interest ;  and  also  by  her  order  occasionally  paid  sums  to  vari- 
ous persons  for  her  use,  and  supplied  her  with  liquors  and 
spirits  as  she  from  time  to  time  ordered  any,  so  that  there  was 
a  running  account  between  them  and  the  plaintiff.  The  fol- 
lowing memorandum  was  signed  by  John  Horn,  and  indorsed 
on  that  part  of  the  deed  in  the  possession  of  Wm.  Horn  and 
Rd.  Jackson :  viz.  "  I  the  within-named  John  Horn  do  hereby 
undertake  and  agree  to  accept  and  take  500Z.  by  equal  quar- 
terly payments  instead  of  600Z.  for  the  first  year's  annuity 
within  referred  to."  To  this  memorandum  there  was  no  date, 
nor  did  it  appear  when  it  was  made.  The  following  indorse- 
ment or  receipt  w^as  also  written  on  the  said  deed,  and  signed 
by  the  plaintiff  as  executor  of  John  Horn :  viz.  "  March  1st, 
1802.       Received   of   the    wdthin-named    Wm.    Horn    and    Rd. 

{n)  AVhat  follows  down  to  the  let-       consent   to   the   case   after  the   first 
ter  a  on  the  next  page  was  added  by       argument. 


1472  HOKN    \.    r.AKKi:. 

Jackson  500/.  lu-iiiy:  one  yt'iu's  ammity  din-  fmin  tlieiu  tlii.s  <l:iy 
for  till!  puipost'S  spcc'ilifd  la-rt'iii."  'riu'ie  was  also  tin-  l<illo\v- 
ing  indoisenienl  on  the  same  ik'fd  signed  hy  Kli/aU'tli  Horn: 
'' Marili  1st,  1S03.  Received  of  the  within-nanje<l  Wni.  Horn 
and  ltd.  Jackson  aOO/.  U'ing  one  year's  annnity  «hie  from  them 
this  day  for  tlie  j)nr|>oscs  speciticd  herein."  'I'he  lirst  meino 
ran(hun  a]>{)cared  to  he  in  the  liandwriting  of  the  st)licitor  wlio 
drew  the  (K-cd:  the  two  hist  receipts  were  in  the  liantlwriting 
of  ltd.  Jackson.  For  many  montlis  previons  to  the  hankrnj>tey 
of  W'ni.  Horn  and  IM.  .lackson  the  jjlaintiff  found  gicat  ditli- 
enlty  in  ohtaiiiiii^'  money  fiom  them;  and  slie  permittrd  the 
annuity  and  interest  to  run  in  arrt-ar  ;  an«l  notnuth»tiin>liini  the 
name  were  more  than  two  monfhx  in  arreur,  the  phiintitT  did  not 
make  any  chiim  to  re-enter  the  j)remi.ses,  as  hy  tlie  dee<l  she  liad 
tlie  power  to  do:  hut  in  May,  !>><••'>,  hrouglit  an  action  in  tliin 
court  asrainst  Wm.  Horn  and  Ud.  Jackson  to  recover  the  arrears 
of  the  annuity,  as  also  to  ohtain  payment  of  the  Ixmd  for  lHl;'>/. 
and  interest;  to  which  action  tliey  ph'ach'd  eight  several  pleas, 
ui)on  seven  of  which  issue  was  joine<l :  ami  to  the  eighth  plea 
Kli/.aheth  Horn  dcmurie<l :  which  demurrer  \\as  argued,  and 
judgment  given  foi-  Elizaheth  Horn,  and  notirc  of  trial  of  tho 
said  issut's  had  hceii  given  at  the  time  of  the  hankruptcy  ;  hut 
in  conse(iuence  thereof  that  cause  was  not  further  pr<»ct'eded 
in;  and  there  was  due  for  the  arrears  of  the  annuity  and  inter- 
est on  the  ])ond  for  Islo/.  at  the  time  of  the  hankruptcy,  alxnit 
GOO/,  (a).  In  April,  iHOo,  the  pluintif,  after  her  hushand's 
death,  renewed  the  leases  of  the  xeveral  premises.  Wm.  Horn 
and  Ud.  Jackson  occupied  the  premises,  with  the  stills,  vats, 
and  utensils  thereon,  and  carried  on  the  trade  of  distillers  from 
the  time  of  executing  the  indenture  of  the  20th  of  .March, 
1801,  to  their  l)ankruptcy.  A  connnission  of  hankruptcy  issiu'»l 
against  Wm.  Horn  and  IM.  Jackson  on  the  Jtith  of  July,  IH(M), 
and  they  were  duly  adjudged  hankrupts  on  the  2Sth;  and  the 
messenger  under  the  commission  immediately  took  possession 
of  the  demised  premises,  and  also  of  the  vats,  stills,  and  utensils 
then  being  thereon.  The  defendants  were  afterwards  chosen 
assignees,  and  an  assignment  of  all  the  estate  and  effects  of 
AVm.  Horn  and  Rd.  Jackson  was  duly  made  to  them:  upon 
which  notice  was  given  by  the  plaintiff  to  the  defendants  that 
the  several  vats,  stills,  and  utensils  were  the  property  of  the 

(a)  See  note,  p.  234. 


HORN    V.    BAKEli.  1473 

plaintiff,  subject  to  the  supposed  interests  of  tlie  bankrupts 
tlieiein.  The  things  mentioned  in  the  deed,  and  comprised  in 
the  first  schedule,  consist  of  stills  and  vats.  The  (a)  stills, 
five  in  number,  were  set  in  brick-work,  and  let  into  the  ground. 
Three  vats  or  worm-tubs  were  supported  by  and  rested  upon 
brick-work  and  timber,  but  were  not  fixed  in  the  ground.  Six- 
teen other  vats  stood  on  horses  or  frames  made  of  wood,  which 
were  not  let  into  the  ground,  but  stood  upon  the  floor  (c). 
The  vats  were  of  wood  bound  round  with  iron :  the  stills  were 
of  copper,  and  connected  with  some  of  the  vats :  other  of  the 
vats  were  also  connected  and  communicated  with  each  other 
by  conductors  or  pipes.  Three  stills  and  vats  were  in  the 
rectifying  dis til-house.  There  were  also  a  great  number  of 
other  vats  under  the  rectifying  distil-house  ;  some  of  which  were 
standing  on  brick  and  timber,  and  others  on  horses  or  frames 
as  above :  and  which  were  connected  with  the  vats  and  stills  in 
the  rectifying  distil-house.  Others  of  the  vats  stood  on  horses 
or  frames  as  above  described.  All  the  vats  in  the  rectifying 
distil-house  stood  on  their  ends ;  as  did  nine  of  those  under  the 
distil-house :  the  other  vats  under  the  distil-house  lay  on  their 
sides  or  bilge.  The  defendants  contending  that  the  vats,  stills, 
and  utensils,  in  the  said  first  schedule  contained,  belonged  to 
the  bankrupts  at  the  time  of  their  bankruptcy,  have  sold  them 
as  part  of  the  estate  and  effects  of  the  bankrupts.  The  plaintiff 
contending  that  the  same  belong  to  her  as  executrix  of  her  late 
husband,  by  virtue  of  his  will  (subject  to  the  use  thereof  by  the 
assignees  in  right  of  the  bankrupts  during  her  life),  has  brought 
this  action  to  recover  in  damages  the  value  of  her  interest 
therein.  The  question  was,  Whether  the  plaintiff  was  entitled 
to  recovery  ?  it  being  agreed  that  if  the  plaintiff  were  so  enti- 
tled, the  amount  of  the  damages  should  be  settled  out  of  court. 

This  case  was  argued  in  Michaelmas  term  last  by  Burrough 
for  the  plaintiff,  and  Dampier  contra  ;  and  again  in  this  term  by 
Williams,  Serjt.  for  the  plaintiff,  and  The  Attorney- General  for 
the  defendants.  The  additions  to  the  case  which  have  been 
noticed  were  made  between  the  first  and  second  argument. 

For  the  plaintiff  (after  stating  that  the  question  turned  on 
the  stat.  21  Jac.  1,  c.  19,  ss.  10  &  11),  the  attention  of  the  court 
was  called  to  the  preamble  to  the  11th  sect,  set  forth  in  the  con- 

(a)  What  follows  clown  to  the  letter  c  was  added  by  consent  to  the 
case  after  the  first  arsrument. 


1-174  ji«M.^    ..   i;aki:k. 

cliisinii  of  till-  lOth;  thnuf,'h  it  was  inhuittiMl  that  tht*  modern 
cases  had  [»iit  a  cniistnictinii  uj)Oii  llie  fiiatliij^'  «  laUNf  In'VoikI 
the  particuhir  mischiff  ivcitcd.  'V\\v  statute  ivritiiij;  "  tliat  it 
often  falls  out  that  many  prrson.H  iH'fore  thoy  l»ecoiiM?  iKiiikruptM 
do  convi'V  tht'ir  ^mods  tt»  otiifr  ineii  upon  ^ood  jonHidfialioii, 
vet  still  «lo  keep  the  sanie,  and  nre  n-fmhil  the  un'tum  thfrm/^ 
and  i/ixpngf  the  mme  an  their  own:"  for  remedy  eiiaets  tliat  "if 
anv  person  shall  U'conie  hankrupt,  and,  at  sueh  times  us  they 
shall  so  hecoine  hankrupts,  shall,  l)y  the  eonsent  and  permission 
of  the  true  owner  and  proprietary,  liav*-  in  their  /»/>*j»»-jt«iVM, 
onfii;  tnul  >/inpoKitton,  any  j,n>ods  or  t  liattels  whereof  tliey  shall 
he  tu'piift'if  f>//'«f/*y,  and  ttike  upon  them  the  *<i/»',  tdterntion  or  ili»- 
pfmltion  ax  owners;"  in  every  sut  h  ease  tlie  et)mmissioners  shall 
have  power  to  sell  antl  dispose  the  same  for  tlie  In'mdit  of  the 
creditors,  »!v:e.  ( JiviiiLj  etTe<t  to  the  words  of  the  preand>le,  tho 
true  ohji'ct  was  to  d«'prive  partieidar  creditors  of  tlwir  sjMM-itio 
licM  on  ^oods,  wlii»  h  having  U'cn  the  property  of  the  Uinkrupt, 
had  i)een  secretly  conveyed  hy  him  to  .su«h  creilitoi-s,  who  suf- 
fered him  still  to  continu«'  in  possession  and  apjH'ar  to  t'.ie 
world  as  the  owner,  'i'hat  provision  was  made  in  the  case  of 
hankrupts  in  order  to  avoid  the  douht  whirli  had  arisen  upon 
the  stat.  l^i  KHz.  c.  o  (u)  atjainst  fraudidt'Ut  conveyaiu'i's  t«)  tie- 
feat  and  delay  cre(litors  in  i^eneral  (and  which  doid)t  still  exists 
on  the  statute  of  l^li/.ahetli  )•  wlietlii-i-  it  werr  Hot  coulimMJ,  as  at 
couinion  law  it  certainly  was,  to  avoid  tlu'  convt-yance  as 
aujainst  those  only  who  were  creditoi-s  of  the  party  at  the  tinu*. 
Wherefore  the  statute  of  James  extended  tlu-  provision  to  all 
the  creditors,  as  well  those  who  hecame  su(  h  afterwards  ais 
those  who  were  such  at  the  time  of  the  conveyance.  Hut  still 
construing  the  two  statutes  tocrether,  as  made  in  pari  materitt^ 
many  great  lawyers  have  considen-d  that  the  preamhle  in  the 
10th  sect,  of  the  stat.  21  Jac.  1,  c  10,  controlled  the  enactment 
in  the  lltli  sect,  and  contined  the  operation  of  the  statute  to 
cases  where  the  property  conveycil  to  ;i  particular  creditor  wa.s 
before  that  time  the  property  of  the  hankrupt  himself.  Of 
this  opinion  was  Lord  C.  J.  Holt,  and  the  Court  of  K.  I».  in 
L'Apostre  v.  Le  Plaistrie  (7)),  and  Lord  C.  B.  Parker,  and  Lord 
Hardtvicke  in  RyaJl  v.  RoUe  (^') :  though  the  contrary  has  since 

{n^  S.ee  Twyne's  Case,  ante,  \6\..  \.  (r)   i    Atk.    175,    182;    and    1    Ves. 

p.  \,  et  notas.  365,  371. 

(ft)  Mich.  1708,  cited  1  P.  Wras.  318. 


HORN    V.    BxUvER.  1475 

been  held  in  Mace  v.  Cadell  («).  Still,  however,  the  court 
will  not  go  further  than  the  latter  case  ;  nor  say  that  the  statute 
shall  attach  in  every  instance  where  a  trader  is  in  possession  of 
another  man's  goods  at  the  time  of  his  bankruptcy,  if  he  were 
not  held  out  to  the  world  as  the  ostensible  owner  by  the  real 
proprietor,  as  in  that  case  the  bankrupt  had  been ;  the  true 
owner  having  there  held  out  the  bankrupt  as  her  husband,  and 
having  obtained  a  licence  for  the  public-house  where  they  lived 
in  his  name.  But  taking  the  preamble  not  to  control  the 
operation  of  the  enacting  clause,  still,  in  order  to  bring  the  case 
within  that  clause,  the  bankrupts  must  not  onl}^  have  such 
goods  in  their  possession,  order,  and  disposition  at  the  time,  hi/ 
the  consent  and  p>ermissio7i  of  the  true  owner,  according  to  the 
first  part  of  the  clause,  but  they  must  also  have  taken  upon 
them  the  sale,  alteration,  and  disposition  of  them,  as  owners,  by 
the  same  consent  and  permission  ;  for  these  words  run  through 
both  parts  of  the  sentence :  and  it  must  appear  either  by  the 
terms  of  the  contract  between  the  bankrupts  and  the  true 
owner,  or  by  evidence  dehors  of  the  nature  of  the  property,  or 
of  the  place  or  circumstances  of  the  possession,  and  that  the 
owner  trusted  the  bankrupts  with  the  poiver  of  selling,  altering 
or  disposing  of  the  goods  as  oivners  ;  or  that  having  the  posses- 
sion, order,  and  disposition  of  the  goods  under  such  circum- 
stances as  might  induce  the  world  to  believe  that  they  had  such 
a  power,  the  bankrupts  did  aetuallg  sell,  alter  or  dispose  of  them 
as  otvners.  In  Walker  and  others,  assignees  of  Bean  v.  Burnell 
(J),  household  goods  and  furniture,  which  were  left  by  the 
assignees  under  the  first  commission  so  long  as  seven  years  in 
the  bankrupt's  possession ;  yet  having  been  so  left  for  a  special 
bond  fide  purpose,  in  order  to  assist  the  bankrupt  in  settling  his 
affairs,  and  getting  in  his  effects  for  the  creditors;  and  the 
bankrupt  not  having  the  disposition  of  the  goods  so  as  to  sell 
them  ;  were  decided  not  to  be  within  the  statute  of  James.  It 
was  admitted  even  in  3Iace  v.  Cadell,  that  every  instance  of  a 
possession  of  goods  of  another  b}^  a  bankrupt  at  the  time  of  his 
bankruptcy  was  not  within  the  statute  ;  but  it  was  said  that 
the  cases  of  factors,  executors,  trustees,  &c.  were  excepted  cases : 
but  the  words  of  the  11th  clause,  if  not  restrained  by  the  pre- 
amble, are  general,  and  would  include  those  which  are  called 

(a)  Cowp.  232.  (6)  Dougl.  317. 


147C  H()i:n    v,   hakkk. 

exceptetl  ciises,  us  wtll  us  iiu\  ullicis  :  llu*y  iii<-  mn,  iinnion-, 
exut'ptt'd  1)V  tliL'  stilt iitf  itst'lt"  in  tfinis,  l)Ut  only  hy  conhtruc- 
tittii  lis  not  fulling'  within  the  reason  of  it:  the  statute  only  at- 
taehiiif  on  the  possession  of  j(ootls  hy  the  Umkrupt  when  siieh 
possession  is  fraudulent ;  where  the  true  owner  has  the  kmk- 
rupt  with  tile  power  of  selling;,  altering  or  disposing  of  tlio 
goods,  as  owner.  And  thou<^h,  perhaps,  the  l)are  faet  of  tho 
possession  of  chattels  may  Ix*  prumi  facie  evidenee  that  thu 
possessor  is  the  true  owner,  and  has  the  power  of  sale,  &c.,  tsA 
owner,  yet  the  eontrary  may  Ik;  sliown,  and  that  the  |M)sse.«wion 
of  the  Itankrupt  was  /muii  Jilf,  an<l  eonsistmt  with  the  rii^ht  of 
the  true  owner.  A  factor  is  intrusteil  with  the  hi^dirst  power 
over  the  goods,  the  power  of  sale ;  hut  lieeuusc  it  is  not  at 
owner,  hut  tts  factor,  whieh  is  eonsistent  with  his  possession  and 
with  the  rights  of  the  true  owner,  the  cji.se  is  not  within  tho 
statute.  The  same  may  be  said  of  trustees  and  executors.  So 
liere,  the  hankru|)ts  had  "  the  |)ossession,  ordi-r,  and  dis|MKsi- 
tion ''  of  the  gt)ods  under  the  indenture,  aji  Ittntfen  and  not  at 
owners;  and  they  had  not  the  naif  or  alteratiun  of  them  at  all, 
nor  the  iU»po»Uion  of  them  a»  oinifru,  so  as  to  ufTuel  the  projv 
erty  in  any  way,  hut  only  the  hare  use  of  them.  In  some  eases 
the  circumstances  attending  the  |M»ssession  may  carry  an  a|>- 
pearani'e  to  the  world  that  the  possessor  has  the  .sale,  altenition, 
or  disposition  of  the  goo<ls,  as  owner:  as  where  goo« Is  usually 
sold  in  a  shop  or  warehouse  are  exp(>se<l  to  vitrw  there:  iind 
from  thence  a  power  to  sell,  iVe.,  by  the  con.sent  of  tlie  owner 
who  permits  this  to  he  done  may  Ik;  fairly  implied:  but  no  such 
inference  can  arise  here,  where  sonje  of  the  vats,  &c.,  were 
actually  fixed  to  the  freehold,  and  othei-s  apiKirently  so,  and  the 
rest  were  used  in  like  manner  as  those  which  were  fixed,  and 
all  of  them  were  numbered.  In  this  case  the  possession  w;is  at 
least  equivocal,  so  as  to  let  in  the  truth  t)f  the  ownership.  It 
was  just  as  likely  by  the  mere  view  of  the  things  that  they  be 
longed  to  the  owner  of  the  premises,  as  to  the  traders  who  were  in 
possession.  They  all  formed  one  entire  ajiparatus  for  distilling, 
part  of  which  was  actually  fixed  to  the  f reeliold :  and  therefore 
the  bare  })ossession  and  use  of  them  carried  no  greater  evidence 
of  title  than  the  possession  of  the  premises  themselves.  And  on 
this  ground,  Buller,  J.,  in  Walker  v.  Biirnell  (a),  held  tliat  the 
furniture  of  the  house  left  in  possession  of  the  bankrupt  did 

(a)  Dougl.  320. 


HORN    V.    BAKER.  1477 

not  pass  under  the  statute.  Wherever  the  contract  between 
the  bankrupt  and  the  true  owner,  to  whom  the  goods  originally 
belonged,  has  been  bond  Jide,  and  not  made  for  the  purpose  of 
giving  him  a  false  credit,  and  the  bankrupt's  possession  and 
mode  of  using  the  property  was  consistent  with  such  contract, 
the  case  has  never  been  held  to  be  within  the  statute.  In  Cope- 
man  v.  Crallant  (a),  though  Lord  Cowper  considered  tliat  the 
preamble  did  not  restrain  the  enacting  words  of  the  clause : 
yet  he  held  the  case  not  to  be  within  it  in  regard  that  the 
assignment,  which  was  for  payment  of  the  debts  of  the  assignor, 
was  with  an  honest  intent.  Ryall  v.  Rolle  (5),  the  property, 
Avhich  originall}^  belonged  to  the  bankrupt^  was  by  him  mort- 
gaged and  conveyed  at  different  times  to  several  persons ;  he 
continuing  all  the  time  in  possession.  That  was  a  fraud 
directl}"  within  the  express  words  of  the  law.  In  Mace  v. 
Cadell  (c)  there  was  direct  evidence  of  fraud  on  the  part  of 
the  true  owner ;  she  herself  having  taking  out  a  licence  for  the 
public-house,  where  the  goods  were,  in  the  name  of  the  bankrupt, 
to  whom  she  said  she  was  married ;  and  having  at  first  claimed 
the  goods  under  a  bill  of  sale  from  him.  Bryson  v.  Wylie  (jP) 
was  decided  altogether  upon  the  ground  of  trick  and  fraud. 
There  was  an  open  sale  of  a  dyer's  plant  to  the  bankrupt,  and 
afterwards  a  private  resale  by  him;  notwithstanding  which  he 
still  continued  to  keep  possession  upon  payment  of  a  pretended 
rent.  Gordon  v.  The  East  India  Company  (e)  was  the  case  of 
goods  invested  by  the  true  owner  in  the  name  of  an  officer  of 
one  of  the  Company's  ships,  as  his  privilege,  whose  property 
they  appeared  to  the  world  to  be :  and  which  was  therefore 
calculated  to  deceive  his  creditors.  So  in  Liyiyham  v.  Biyys  (/), 
a  creditor,  having  taken  in  execution  the  furniture  of  a  cof- 
fee-house keeper,  permitted  him  to  remain  in  possession  of  it 
under  a  rent ;  who  therefore  appeared  to  the  rest  of  the  world 
to  continue  the  owner  of  it  in  the  same  manner  as  before ; 
there  being  nothing  done  to  notify  the  change  of  property, 
which  was  clearly  fraudulent  even  within  the  j)reamble  of  the 
statute.  But  in  that  case  Lord  C.  J.  Eyre^  speaking  of  Bryson 
V.  Wylie,  said  that,  notwithstanding  that  decision,  he  could  sup- 

(a)  1  P.  Wms.  320,  1.  (d)  Hil.  24  Geo.  2  B.  R.,  cited  in 

(fo)  1  Atk.  1G5,  and  1  Ves.  349.  note  («),  1  Bos.  &  Pull.  83., 

(c)  Cowp.  232.  (e)  7  Term  Rep.  228. 

(/)   I  Bos.  &  Pull.  82. 


14TH  IIi>I:N     v.    liAKKl:. 

pose  that  a  dyer  nii<,'lii  Ik-  in  pussusHion  of  a  i»lant  wiiln.ul 
he'iug  the  iv|>utiMl  owium.  And  lu-  also  supimited  the  decismu 
in  Collins  v.  Forhen  (<Oi  which  has  Ikjuii  questioned  (A).  Hut 
a(hiuttin<,'  tliat  tliere  were  some  ein-unistances  «»f  fraud  in  the 
lastinentioned  ease,  the  prineiple  there  estahlishe«l,  whieh  h;w 
not  lx;en  (juestioned,  was,  that  wliere  the  hankrupt  wiw  in 
possession  of  tlie  ^'oods  at  tlie  time  of  his  Umkrnptev,  with  the 
consent  i>f  the  true  owntr,  homt  fih;  for  a  special  purpose, 
beyond  whi«h  lie  had  not  the  rii^dit  «>f  alteration  or  disposition, 
it  is  not  within  the  statute.  The  ejise  of  D(trhi/  v.  Smith  (e) 
was  considered  as  an  alwolute  sale  of  the  j^'oods  hy  the  trustees 
of  the  wife  and  children  to  the  hushaml,  whom  they  suflered  to 
continue  in  possession  till  the  day  iK'foie  his  haukruptcy  with- 
out his  paying'  the  stipulated  instalments.  It  woidd  have  l)eon 
useless  to  have  diseusstMl  any  of  these  cast's  if  the  hare  act  «)f 
possession  of  the  goods  of  another  hy  a  Iw-ukrupt  at  the  time 
of  his  bankruptcy  were  suflicient  to  bring  a  ease  within  the 
statute.  Now  here,  by  the  ti-rms  (»f  the  d«'ed,  the  bankrupts 
had  no  power  over  the  vats,  stills,  and  utensils  in  their  pos^sej*- 
sion,  except  the  use  and  repair  of  them  as  lessees:  they  had  not 
the  general,  but  only  a  special  onlrr  ami  ilinpimition  of  them  by 
the  consent  of  the  true  owner:  and  they  had  no  power  of  $itle, 
alteration,  or  di^pogition  of  them  at  all  a»  owners.  But  if  the 
consent  or  permission  of  the  true  owner  mentioned  in  the  first 
part  of  the  11th  rhiuse  Iw  not  carried  to  the  '"*<i/«',  alteration,  or 
dixposition'^  nuntioncd  in  the  latter  part ;  at  least  those  woriU 
must  be  intended  of  an  itrtunl  mle,  alteration,  or  dinponition  of 
the  things  by  the  bankrupt,  in  order  to  bind  the  true  owner: 
for  the  words  of  the  act  are  ''and  taken  upon  them  (the  bank- 
rupts) the  sale,  &c.,  as  owners;"  which  is  not  pretended  to 
have  been  one  by  the  bankrupts  in  this  ease.  Consistently 
with  the  deed,  the  lessees  could  not  even  have  removed  these 
goods  from  the  premises  demised  to  any  other  place,  without 
an  implied  breach  of  covenant,  to  be  collected  from  the  whole 
deed ;  for  they  Avere  all  scheduled  and  numbered,  and  let  as  an 
entirety ;  and  if  displaced,  it  could  not  be  told  how  the  num- 

(rt)  3  Term  Rep.  31G.  to  Mr.  CuUen's  observations  on  tli.it 

(ft)  By  Lawrence,  J.,  in  Gordon  v.  case,  which  lie  said  were  very  .sensi- 

The  East  India  Company,  7  Term  Rep.  ble.     Cull.  Trinciples  of   the   Bauk- 

237,  who  now  again  intimated  great  rupt  Laws,  318. 

doubts  of  that  case,  as  did  also  Lord  (c)  8  Terra  Rep.  82. 

EUenborouQh.     The  former  referred 


HOKN    V.    BAKER.  1479 

bers  applied,  and  the  object  of  numbering  them  would  be  de- 
feated. 

It  was  also  objected  to  the  plaintiff's  title,  that  the  possession 
of  the  lessees  at  the  time  of  their  bankruptcy  was  not  con- 
sistent with  the  deed :  because  they  were  only  to  hold  so  long 
as  they  performed  the  covenants  and  paid  the  annuity  re- 
served ;  and  there  was  a  proviso  for  re-entry  in  case  such 
annuity  was  in  arrear  for  two  months :  and  no  re-entry  had 
been  made,  though  the  annuity  was  in  arrears  for  a  longer 
time.  To  this  it  was  answered  tliat  the  words  of  the  inden- 
ture whereby  John  Horn  covenanted  that  the  lessees  "  per- 
forming all  and  singular  the  covenants  and  agreements  therein 
contained,  &c.  and  also  duly  and  regularly  paying  the  annuity, 
&c.,  should  quietly  possess  and  enjoy,  «Scc.  the  premises,  and 
also  the  stills,  vats,"  &c.,  were  not  words  of  condition,  on  the 
breach  of  which  the  lessees  were  no  longer  to  hold  over,  but 
in  law  were  only  words  of  covenant  on  the  part  of  the  lessees, 
for  the  breach  of  which  a  remedy  lay  upon  the  covenant ;  as 
was  determined  in  Hayea  v.  Bickerstaffe  (a).  Then,  though 
there  was  an  express  power  of  re-entry,  in  case  of  such  arrear, 
yet  it  could  not  have  been  executed  under  the  circumstances ; 
for  there  was  a  running  account  between  the  parties ;  the 
plaintiff  having  received  money  on  account  of  the  annuity 
from  time  to  time,  and  the  bankrupts  having  also  paid  bills 
for  her ;  and  this  account  was  not  liquidated.  But  to  warrant 
a  re-entry  there  must  be  a  demand  of  the  precise  sum  due, 
which  could  not  be  told  b}^  the  plaintiff  at  the  time.  Besides, 
as  in  the  case  of  rent  reserved  quarterly,  when  two  quarters 
have  elapsed  the  lessor  cannot  re-enter  for  the  first  quarter, 
but  only  for  the  last ;  having  slipped  his  opportunity  for  the 
other  after  another  quarter  has  become  due ;  so  here  the 
plaintiff  could  only  have  re-entered  for  the  last  payment  in 
arrear.  But  supposing  ni  strictness  that  the  plaintiff  might 
have  re-entered,  yet  as  it  would  not  have  been  prudent  to  do 
so,  she  will  stand  excused  for  waiving  the  exercise  of  an 
odious  right  of  forfeiture,  against  which  a  court  of  equity 
would  of  course  have  relieved  the  lessees  on  payment  of  the 
arrears :  and  this,  ever  since  the  stat.  4  Geo.  2,  c.  28,  s.  2,  if  the 
application  for  relief  were  made  within  six  months  (5). 

For  the  defendants,  it  was  contended  that  the  possession  of 

(rt)  2  Mod.  34,  5.  (&)  Doe  v.  Lewis,  1  Burr.  619. 


1480  ii<h;n    n.    hakkk. 

the  hiiiikrupts  was  not  eonsisU-nt  witli  the  tlei'il ;  fur  by  that, 
ill  tin-  rvt'iit  wliich  happcMcd  of  the  annuity  falling  into  iirruar, 
the  phiintitY  was  eiititUil  t<»  mtrr  and  take  possesNion  of  the 
goods  in  (luestinii  ;  iiistcail  of  w  hit  h  she  left  theni  in  the  [mj**- 
session  of  tlie  traiU'is;  and  hi-ou<,dit  an  aiti«»n  for  tin*  arrears, 
which  was  (h-feated  hy  their  liaiikrnptey.  As  to  the  dilVirulty 
of  iiiakin^^  a  deinan<l  for  the  precise  sum  U-fore  re-t'iitry,  the 
strictness  of  hiw  in  tliat  respect  only  appli«'s  to  eases  of  re- 
entry for  non-payment  of  rent  where  the  (K>mand  must  Ik?  on 
the  land,  and  not  to  the  repossession  of  j;o(hIs  for  non-payment 
of  an  annuity  for  whi(  h  tiiey  were  a  security,  in  which  case 
the  demand  may  l)e  made  anywhere.  However,  if  a  previotw 
demand  of  tlu;  [jrecise  sum  wi-re  necessary,  tl»e  diflicully  «>f 
aseertaininj^  it,  oecasioned  hy  the  act  of  the  annuitant  hei-self, 
would  he  no  reason  why  as  Utween  these  parties  she  sliould 
be  excused  for  not  haviii;^  made  it.  If  siie  were  entitle<|  to 
possession  under  the  deed  in  the  event  whit  h  hap|H'ned,  and 
by  taking  the  necessary  measures,  whatever  they  nught  U?, 
would  have  been  in  possessi«)n,  tlu'  suljsecjuent  |M>sses,sion  of 
the  bankrupt  Wivs  against  the  stipulations  of  tlie  deed:  and  tiu8 
brings  the  ease  within  Ditrhj/  v.  Smith  (<i),  which  is  very  like 
the  present  in  its  lircumstances  ;  for  tiiere  the  trustee  ha<l  a 
right  to  enter  and  re-possess  himself  of  the  goods,  if  the  stipu- 
latetl  payments  were  not  ma<le ;  and  having  negleeted  to  do  so, 
after  defaidt  made  in  all  but  the  lii-st  instalment,  the  possession 
of  the  bankrupt  was  held  ttt  In;  within  the  statute;  though  juj 
between  the  parties  to  the  contract  the  transaction  wjis  bond 
fide,  and  no  fraud  in  fact  inten<led.  But  a<lmitting  that  the 
possession  of  the  bankrupts  was  in  pursuance  of  the  deed,  it 
does  not  follow  that  their  possession  wan  not  without  the 
statute.  If  this  were  so,  every  case  of  this  sort  might  U?  taken 
out  of  the  statute.  The  ])ossession  of  a  mortgagor  of  goods, 
is  not  inconsistent  with  his  title,  and  yet  it  has  nt'ver  U'cn 
doubted  since  Ri/nll  v.  RoUe  (7>)  that  it  was  within  the  statute. 
It  is  the  reputeil  ou)itr.s/iip  of  the  goods  in  the  possession  of  the 
bankrupt  which  brings  the  case  within  the  express  words  of 
the  statute,  the  avowed  object  of  which  was  to  defeat  those 
secret  conveyances,  by  which  personal  ])roperty  is  secured  to 
particular  creditors,  while  to  the  eye  of  the  world  it  is  left  in 
the  possession,  order,  and  disposition  of  the  bankrupt,  who  by 

(a)  8  Term  Kep.  82.  (6)  1  Atk.  165. 


■     HORN    V.    BAKER.  1481 

means  of  it  obtains  a  false  credit.  It  is  now  fully  settled  since 
the  case  of  Mace  v.  Caclell  (^ci)  that  the  preamble  does  not  con- 
trol the  enacting  words  of  the  11th  clause  of  the  act.  But 
it  is  argued,  that  the  bankrupt  must  not  only  have  the  |j»os- 
sessioti,  order,  and  disposition  of  the  goods,  with  the  consent 
of  the  true  owner,  but  also  the  power  of  sale,  alteration,  and 
disposition,  by  the  same  consent.  Certainly  the  bankrupt 
need  not  have  actually  sold  and  delivered ;  for  then  the 
question  would  never  arise,  as  was  observed  by  Eyre,  C.  J.,  in 
Lingliam  v.  Biyijs  (li) ;  for  the  act  only  gives  the  assignees 
of  the  bankrupt  power  to  appropriate  goods  in  his  possession. 
But  the  same  learned  Judge  says,  that  "if  a  man  be 
reputed  owner  of  the  goods,  and  appear  to  have  the  07'der 
and  disposition  of  them,  he  must  be  understood  to  have 
taken  upon  himself  the  scde,  alteration,  and  disposition  within 
the  meaning  of  the  statute."  Neither  could  it  be  the  mean- 
ing of  the  statute  that  the  bankrupt  should  be  the  true 
owner  of  the  goods,  because,  as  Lord  Hardwicke  said,  in  Rijidl 
V.  Rolle  (c),  the  Legislature  has  explained  its  sense  by  putting 
the  words  true  owner  in  opposition. to  the  reputed  owner.  Nor 
could  it  mean  that  the  bankrupt  should  have  the  power  of  sale, 
^c.,hy  i\\e,  consent  of  tlie  true  oivner :  for  then  his  selling  or 
otherwise  disposing  of  them  would  be  no  breach  of  the  private 
contract  between  them.  In  every  case  where  any  question  can 
arise,  the  reputed  ownership  of  the  bankrupt  must  be  limited, 
as  between  him  and  the  true  owner,  by  some  secret  stipulation 
abridging  the  general  right  of  disposition  :  and  it  was  the  very 
object  of  the  act  to  prevent  the  operation  of  such  secret  en- 
gagements, which  enabled  traders  to  obtain  a  false  credit  by 
means  of  the  apparent  or  reputed  ownership  which  their  visible 
possession  of  the  goods  of  others  gave  them.  It  is  no  question, 
therefore,  in  these  cases  what  is  the  real  contract  in  the  deed ; 
for  that  could  not  be  known  at  the  time  to  third  persons  who 
were  dealing  with  the  trader.  The  only  question  which  can  be 
made,  consistently  with  the  words  and  objects  of  the  statute,  is, 
whether  the  trader  in  possession  at  the  time  of  his  bankruptcy 
had  the  apparent  order  and  disposition  of  the  goods  ?  If  to  the 
eye  of  the  world  he  appeared  to  be  the  owner  of  them,  or  was, 
as  the  statute  calls  him,  the  reputed  owner,  the  case  is  within 
the  statute :  though  in  truth  there  was  a  secret  conveyance  or 

(a)  Cowp.  232.  (6)  1  Bos.  &  Pull.  87.  (c)   1  Atk.  183. 


1482  lUniS    V.    l;Alvl.l:. 

agreement  by  whith  the  property  wus  made  over  or  Hceurcil  to 
aiiotlier.  This,  iis  was  siiid  hy  linller,  J.,  in  Wulhr  v.  Jiur- 
nell  {(i),  uwisl  iiUviiys  \k'  more  a  <[Ufstit»n  of  fart  tliaii  of  hiw. 
When  the  fact  of  tlit-  n-pnted  ownei-ship  is  chsirly  iMcertaiiieil, 
the  hiw  follows  of  course.  Kvery  nuin,  says  Ayrf,  C.  .1.,  in 
Liu;//uim  V.  Iii:/,'/«  (/')'  ^^'"*  '■*^"  ^'  ■"**''"'  ^"*  ***'  ^''^*  rfjuittU  oirner^ 
has  incidentally  the  onlrr  ami  ilispositittn  of  ^'oo<ls  ;  ami  if  he 
he  rc[)Utc(l  owner,  and  apiK-ar  to  have  the  order  and  dis|M»siiion 
of  them,  he  must  Ije  underst»)od  to  have  titkt-n  upon  /linntrlf  the 
f<(i/e,  order,  ami  dixponition,  within  the  meaning  of  the  statute. 
And  if  the  real  owner  do  not  take  such  means  us  may  U*  in  his 
power  to  prevent  thi-  puhlie  l>eing  imposed  U|M)n  hy  su<h  false 
appearance,  that  is  (he  very  mischief  meant  to  lie  reniedieil  hy 
the  act  :  .md  the  hankrujtt  must  U-  taken  to  have  the  |M>ssej»- 
sion,  order,  and  dispt»siiion  of  the  goods  hy  consent  «>f  the 
owner:  and  the  heing  in  possession  under  suih  circumstances, 
from  whence  the  onUr  and  disposition  of  the  gcMuls  may  be 
reasonably  inferred,  makes  the  reputed  ownership.  Now  here 
every  circumstance  of  notoriety  tended  to  show  that  the  Lmk- 
rupts  were  the  true  owners  of  the  good.s,  whether  eonsiclering 
the  possession  ln'fore  the  imlenture  of  the  80th  of  March,  the 
time  and  cinumstances  under  which  the  bankrupts  took  jiosse.s- 
sion  under  that  dvvd,  the  avowed  purpose  for  whiih  it  was 
made,  or  the  cniitiMUcd  possession  and  the  ajiparent  ownei'ship 
of  the  baidcrupts  after  the  transfer  in  the  sanu*  manner  as  l>e- 
fore,  Williani  llnrn.  one  of  the  banki  U|>ts,  ha<l  Ih-cu  in  part- 
nershii)  with  .lolm  lidin,  the  testator,  before  the  transfer;  they 
carrieil  on  business  jointly  upon  the  same  premises,  and  had  a 
joint  use  of  the  vats,  stills,  A:c.,  and  to  the  eye  of  the  world  at 
least  the  property  l)elonged  to  the  partnership,  however  it 
might  be  as  between  themselves.  Hd.  Jackson  had  alst)  an  in- 
terest with  John  Horn  in  the  lease.  The  business  was  a  losing 
concern;  and  John  Horn  wishing  to  get  out  of  it,  appeared  to 
the  world  to  withdraw  himself  from  it;  and  Wm.  Norn  aj>- 
peared  to  continue  in  possession  of  the  premises,  and  of  tlu' 
vats,  stills,  and  utensils  for  carrying  on  the  business,  together 
Aviili  Rd.  Jackson,  and  to  exercise  the  same  acts  of  ownership 
as  he  had  done  before  when  in  partnership  with  John  Horn. 
But  in  fact  John  Horn  had  secretly  conveyed  this  property  to 

(a)  Doujrl.  Ml,  and  rnde  this  noticed  by  J-^ijre.  C.  J.,  in  iJnrihnvx  v.  Biggs, 
1  Bos.  &  Pull.  89.  (6)  1  Bos.  &  Pull.  87. 


HOKX    V.    BAKER.  1483 

Wm.  Horn  and  Rd.  Jackson,  saddled  with  the  annuity  to  him- 
self and  his  wife,  which  was  likely  to  ruin  the  trade  more  rap- 
idly than  before.  But  there  was  no  notice  of  the  change  to  other 
persons  dealing  with  the  partnership  ;  the  deed  was  kept  secret 
from  them ;  the  object  of  all  the  parties  being,  that  the  trade 
might  be  carried  on  by  the  existing  partners  with  the  same  ap- 
parent capital  as  the  old  firm,  and  that  the  credit  of  the  new 
partnership  might  not  be  lessened  by  the  general  knowledge  of 
the  fact,  that  the  goods  in  question  were  not  their  property. 
The  secrecy  of  the  transfer  was  as  much  foi-  the  benefit  of  John 
Horn  as  of  the  continuing  partners ;  for  if  their  credit  were 
shaken,  they  would  be  less  able  to  pay  the  stipulated  annuity. 
In  fact,  the  bankrupts  did  gain  a  false  credit  b}-  the  possession 
of  the  goods  in  (question.  There  is  no  fact  of  notoriety  to  resist 
the  conclusion  that  these  were  the  goods  of  the  bankrupts ;  and 
the  only  fact  relied  on  to  show  that  the  property  was  not  theirs, 
is  the  secret  indenture  of  the  20th  of  March,  1801,  by  which  a 
prior  claim  on  the  goods  was  secured  to  John  Horn ;  but  such 
a  secret  transfer  is  of  the  very  species  of  fraud  which  the  stat- 
ute meant  to  guard  against.  The  case  of  Bryson  v.  Wylie  (a) 
cannot  be  distinguished  from  this  in  principle.  The  bankrupt 
there  had  the  possession  of  the  dyer's  plant,  but  he  had  not  paid 
for  it :  he  therefore  agreed  to  assign  it  to  the  creditor,  and  to 
take  it  again  on  lease  from  him.  There  was  no  mala  fides  or 
fraud  in  the  transaction  between  those  two ;  and  if  the  interests 
of  no  other  person  had  been  concerned,  it  was  only  just  and 
reasonable  that  the  creditor  should  have  had  his  secarity ;  yet 
that  was  avoided  by  the  operation  of  the  statute,  as  fraudulent 
in  law  against  the  creditors  in  general.  The  case  of  Darby  v. 
Smith  (J)  is  strong  to  the  same  point.  The  case  of  Walker  v. 
Burnell  (c)  turned  as  it  seems  on  the  notoriety  of  the  goods 
which  were  left  in  the  bankrupt's  possession  continuing  the 
property  of  the  assignees  under  the  first  commission  :  but  that 
is  a  very  doubtful  case.  The  honesty  of  the  intent  of  the  true 
owner  cannot  be  sufficient  to  protect  the  goods  ;  for  according 
to  the  report  of  Copeman  v.  Gallant  in  7  Vin.  Abr.  89,  Lord 
Cowper  said,  "  If  possession  and  disposition  be  given  to  a  person 
who  becomes  bankrupt  ^/io?^//A  no  intent  of  fraud  appear;  yet, 
if  it  give  a  false   credit,  there  is  the  same   inconvenience  as  if 

(a)   Hil.  24  Geo.  3  B.  R.  cited  in  1  (h)  8  Term  Rep.  82. 

Bos.  &  Pull.  83.  (c)  Dougl.  317. 


1484  li<>i:\    v.    i!AKi:i:. 

fniiid  were  iutendetl,  ^v. ;  aad  it  lu.iLleJh  not  whutliei  il  were 
by  hand,  or  only  by  Ufgluct,  or  out  of  u  hmnour."  And  lhu» 
was  adniitteil  in  Burknnll  v.  Itoifntun  (a)  in  the  ciuse  of  a  Uink- 
riiptcy. 

In  tbt'  course"  »»1  ilic  .iiL;'iiiiiiii,  tiiu.t,,  .1.,  .i.-«ki'd  wnutner  lin  i< 
was  any  usat^c  in  tlu^  trade  for  distillers  to  hire  or  lea.se  vats, 
stills,  »&e.,  with  tluir  premises?  To  wliirli  it  was  answered  by 
the  defenilanl's  counsel  that  no  such  usa^'e  appeared;  and  un- 
less it  were  expressly  found  by  the  ease,  the  presumption  woidtl 
be,  that  thinj^  necessary  to  carry  on  the  traile  were  provided 
by  the  traders  themselves;  and  that  tlie  possession  of  su«h 
thinj^s,  which  were  of  ^Mcat  value,  must  naturally  jjive  nmre 
credit  to  the  distillers  than  the  mt?re  view  of  the  spirits  cUh- 
tille<l,  which  often  belon^jd  to  others.  Lonl  Klltnhorou»ih,  ('. 
J.,  also  observed  at  the  conclusion  of  the  ar^unn-nt,  that  notii- 
i\v^  h  id  been  said  with  respect  to  the  distinction  U-tween  such 
of  the  vats  antl  stills  as  were  allixed  to  the  freehohl,  and  those 
that  were  moveable,  ami  woidd  U*  the  subject  of  trover;  U-tween 
which,  he  said,  the  court  thouj^dit  there  was  a  material  distinc- 
tion ;  the  words  of  the  statute  of  James  l>einp//«0(/«  nnl  rhatttlt. 
And  upon  askini;  Tfie  Attornt'if-Genrrul  whether  he  meant  to 
insist  upon  the  rii,dit  of  the  assij^nees  to  such  of  tiie  articles  a8 
were  atlixed  to  the  freehold  and  referrini^  him  to  liifall  v.  /^>//t^ 
and  l)einj^  answered  in  the  nei,Mlive,  his  Lordship  said,  that  if 
the  rest  of  the  court  ai^reed  with  him  in  opinion  as  to  the  rij^dit 
of  the  assignees  to  such  of  the  articles  as  properly  fell  under 
the  denomination  of  goods  and  chattels,  it  would  l)e  better  to 
leave  it  to  a  refi  ii-e  to  ascertain  out  of  court  the  difference  of 
the  valu'^  for  which  the  verdict  should  Ix;  entered. 

Lord  Ellenboroui/h,  C.  J.,  then  proceeded.  —  The  true  object 
of  the  statute  21  Jae.  1,  c.  19,  ss.  10  and  11,  Wius  to  make  the 
reputed  ownership  of  goods  and  chattels  in  the  possession  of 
bankrupts,  at  the  time  of  their  bankruptcy,  the  real  ownership 
of  such  goods  and  chattels,  and  to  subject  them  to  all  the  debts 
of  the  bankrupt;  considering  that  such  repute<l  ownership  would 
draw  after  it  the  real  sale,  order,  alteration,  and  dis[)Osition  of  the 
goods.  The  stills,  it  appears,  were  fixed  to  the  freehold  ;  and  as 
such,  we  think,  would  not  pass  to  the  K\nkruj)t's  assignees  under 
the  descriptions  of  goods  and  chattels  in  the  statute.  Hut  as 
to  the  vats  aud  utensils,  there  is  nothing  in  the  case  to  rebut  the 

(a)  Prec.  in  Chan.  2G7. 


HOEN    V.    BAKER.  1485 

reputed  ownership  following  the  possession  of  the  bankrupts 
after  the  dissolution  of  the  old  firm,  when  the  business  was  con- 
tinued to  be  carried  on  by  the  bankrupts  alone,  in  the  same  man- 
ner as  it  followed  the  possession  of  the  antecedent  partnership 
when  the  trade  was  carried  on  by  John,  Robt.,  and  Wm.  Horn. 
Before  the  deed  of  the  20th  March,  1801,  though  John  Horn 
might  have  had  a  priority  of  claim  to  the  stills,  vats,  and  uten- 
sils, as  between  him  and  his  partners ;  yet  to  the  eye  of  the 
world  the  apparent  ownership  of  them  was  in  the  partners, 
John,  Robert,  and  William  Horn.  After  the  deed  John  de- 
mised these  things  to  Wm.  Horn  and  Rd.  Jackson,  who  con- 
tinued to  carry  on  the  trade  after  he  had  retired  from  it,  find- 
ing it  to  be  a  losing  concern ;  and  instead  of  reserving  a  rent, 
he  reserved  an  annuity  payable  to  himself  and  his  wife  and  the 
survivor  of  them,  with  a  liberty  to  the  new  partners  to  purchase 
these  articles  on  the  death  of  such  survivor.  Under  this  asrree- 
ment  Wm.  Horn  and  Richard  Jackson  continued  in  possession 
of  the  property,  carrying  on  the  trade  in  the  same  manner  as 
was  done  before  ;  and  to  the  eye  of  the  world  the  property  of 
these  goods  appeared  to  be  vested  in  them  in  the  same  manner 
as  it  appeared  to  be  in  the  former  partnership.  As  between 
the  parties  to  the  contract,  the  new  partners  could  not,  indeed, 
sell,  alter,  order,  or  dispose  of  the  j)roperty  but  according  to  the 
provisions  of  that  deed :  but  as  to  the  world  in  general,  they 
appeared  to  have  the  same  right  over  it  which  the  former  part- 
ners had.  Had  they  not  then  the  reputed  ownership  ?  If,  as  in 
some  manufactories,  where  the  engines  necessary  for  carrying 
on  the  business  are  known  to  be  let  out  to  the  several  manu- 
facturers employed  upon  them,  there  had  been  a  known  usage 
in  this  trade  for  distillers  to  rent  or  hire  the  vats  and  other 
articles  used  by  them  for  the  purpose  of  distilling,  the  posses- 
sion and  use  of  such  articles  would  not  in  such  a  case  have  car- 
ried the  reputed  ownership.  But  in  the  absence  of  such  a 
usage,  there  is  nothing  stated  in  the  case  which  qualifies  the 
reputed  ownership  arising  out  of  the  possession  and  use  of  the 
things  in  their  trade.  The  world  would  naturally  give  credit 
to  the  traders  on  their  reputed  property ;  and  the  person  who 
permitted  them  to  liold  out  to  the  world  the  appearance  of  their 
being  the  real  owners  ought  to  be  answerable  for  the  conse- 
quences, and  was  so  intended  to  be  by  the  statute.  For  some 
time  it  was  vexata  qucestio  whether  the  preamble  controlled  the 


14sn  ii(_)1;n    \.    i;\Ki;i:. 

eiiiictinj^  wolds,  so  iis  to  L-oiitiiie  tlie  opfiiiticiii  of  tin*  stiitut(>  to 
casus  where  the  iKinknipt  was  the  ori<,Miial  owner  of  tin*  I»««>|>- 
eity  coiiveyeil  liy  him  to  the  |>aitieuhir  «Te(lilor ;  but  the  eiia«*t- 
iu<r  wolds  have  been  lon<;  liehl  not  to  lie  so  eontrolled.  lien*, 
in  fact,  the  hankiiipts  were  only  lessees  of  these  j;oo<Ls  :  hut 
that  was  a  seeiet  known  only  to  the  parties  theniselvi's  ;  and 
iKjthiiiL,'  a[)i)eare(l  to  teach  the  world  that  the  JKinkrupi^  eouhl 
not  I)iiiil  the  property  to  the  full  extent  of  it.  This  is  a  owe 
th(!M  which  comes  witliin  the  fair  constnution  <tf  the  enacting 
words.  Tlie  case  of  Bri/xnn  v.  Wi/lit-  la'ars  stroni,'l\'  on  the 
present;  for  tli;it  was  not  the  ease  of  a  inortj^ajjor  keepinj^  pos- 
session of  ^'oods,  as  mi^^dit  he  supposed  from  the  note  of  what 
was  said  hy  Lord  MinixfoUl :  hut  the  plaintitT,  who  was  tlie 
orirrinal  owner  of  the  plant,  iimiin^  that  SinijKSjui,  to  wlnun  he 
had  sold  it  on  the  security  of  two  promiss<MV  notes,  was  not  able 
to  pay  tlie  notes  when  due,  agreed  to  take  ba«k  the  plant  and 
<^'ive  uj)  the  notes,  and  to  let  the  plant  to  Sim[>son  at  a  rent: 
under  which  agreement  Simpson  continued  in  pos.session  of  it 
up  to  the  time  of  his  bankruptcy.  Mr.  Justice  liiiUer  there 
distin[(uislied  the  case  from  that  of  a  banker  or  faet<»r  who  by 
the  course  of  tratlc  nuist  have  the  gt>ods  of  other  people  in  bin 
possession  ;  and  thcrcfori'  it  ilid  not  hold  out  a  false  er«'dit  to 
the  world,  lie  meant  therefore  to  say,  that  where  the  pos.ses- 
sion  did  hohl  out  a  false  credit  to  the  w(uld,  there  the  statute 
would  follow  it,  and  attach  upon  the  goods.  And  the  eases  of 
Mucr.  V.  CiuhlL  and  Lini/hnm  v.  Bii/i/x,  are  authorities  to  the 
same  [)urpose.  The  princii)le  to  Ik-  deduced  from  all  <»f  tiieni 
is,  that  where  the  n-putcd  ownei*ship  of  tlie  goods  in  the  trailer 
is  permitted  to  be  held  out  to  the  world,  it  shall,  with  respt-ct 
to  the  world,  be  considered  as  the  real  owiwrship.  I  dt)  not 
enter  into  the  ([uestion  whether  the  bankrupt's  possession  were 
consistent  with  the  deed:  becausi-  that  would  only  apply  to  the 
time  after  which  the  plaintitY  might  have  re-entered  for  non- 
payment of  the  annuity.  Her  not  doing  so  might,  perhaps,  l)e 
argued  as  more  distinctly  showing  her  intention  to  exhibit  the 
ap[)arent  ownership  of  the  l)ankruj)ts  to  the  world:  but  I  lay 
no  stress  on  it:  for,  in  my  view  of  the  ease,  however  consistent 
their  possession  might  have  been  with  tiie  deed,  it  would  only 
have  shown  that  the  deed  itself  was  the  fraud  which  the  statute 
meant  to  guard  against.  The  principle  is.  that  in  all  ca.ses 
where,  by   the  consent    and  permission  of  the   true  owner  of 


HORN    V.    BAKER.  148T 

goods,  a  trader  in  possession  has  the  apparent  ownership,  and 
incidental  to  that  the  order  and  dis])Osition  of  them ;  and  no 
other  circumstance  appears  to  control  such  apparent  ownership, 
and  show  that  the  trader  was  not  the  real  owner  ;  the  true 
owner  permitting  the  trader  to  exhibit  this  appearance  does  it 
at  his  peril. 

Grrose,  J.  —  The  case  of  Mace  v.  Cadell  has  put  a  construc- 
tion upon  the  statute,  which  has  ever  since  settled  that  where 
the  real  owner  of  goods  suffers  a  trader  to  have  the  reputed 
ownership,  so  as  to  have  the  apparent  order  and  disposition  of 
them,  and  the  trader  becomes  bankrupt,  the  statute  gives  the 
property  to  the  assignees  for  the  benefit  of  the  creditors.  I 
only  doubted  whether  the  stills  which  were  fixed  to  the  free- 
hold would  pass  under  this  statute ;  but  it  is  now  agreed  that 
they  do  not.  But  with  respect  to  the  other  articles,  it  is  im- 
possible to  distinguish  this  case  in  principle  from  the  current  of 
those  which  have  been  decided,  which  have  gone  upon  the 
ground,  that  where  the  real  owner  enables  a  trader  to  acquire 
credit  by  having  possession,  and  apparent  order  and  disposition 
of  goods  with  respect  to  the  world,  he  does  in  effect  permit  such 
trader  to  take  upon  himself,  and  he  has  with  respect  to  the 
world,  the  apparent  sale,  alteration,  and  disposition  of  the  goods, 
wi'thin  the  meaning  of  the  statute. 

Laivrence,  J.  —  The  question  in  these  cases,  as  was  observed 
by  Mr.  Justice  Buller  in  Walker  v.  Bm-nell,  is  rather  a  question 
of  fact  than  of  law.  And  therefore  it  seems  more  proper  in 
such  cases  to  leave  it  to  the  jury  to  say  whether,  under  the  cir- 
cumstances, the  bankrupt  had  the  reputed  ownership  of  the 
goods  at  the  time  ;  for  if  the  true  owner  suffer  a  trader  to  have 
the  reputed  ownership  of  goods  left  in  his  possession,  and  be- 
come bankrupt,  the  statute  says  that  the  property  shall  go  to 
his  assignees.  In  this  case,  therefore,  we  are  rather  called  upon 
to  consider,  as  upon  a  motion  for  a  new  trial,  what  conclusion 
a  jury  should  have  drawn  from  this  evidence,  than  to  consider 
a  dry  question  of  law.  The  facts  stated  are,  that  one  partner, 
upon  retiring  from  business,  leases  to  others  who  continue  it 
(one  of  whom  had  been  in  partnership  with  him  before),  cer- 
tain stills,  vats,  and  utensils  proper  for  carrying  on  the  busi- 
ness, and  which  had  been  used  by  the  former  partners.  The 
new  partners  become,  in  consequence,  to  the  world  the  ap- 
parent owners  of  the  property.     It  may  happen,  from  the  coursa 


1488  H(»i:n    v.    iiaki;i:. 

of  certain  trades,  that  masses  of  mai-hinery  are  let  out  by  the 
owners  to  the  nu'chiinics  imij^m^'imI  in  tht-ni,  and  the  notoriety  of 
such  a  usage  in  the  trade  nuiy  rebut  the  [)resuin[»lion  of  owner- 
ship which  woukl  otherwise  arise  from  the  jHissession  ;  l>nl  in 
general  the  possession  of  utensils  of  trade  must  Ik-  taken  to  Ije 
by  the  owners  of  them.  And  1  agree,  tliat  nothing  turns  upon 
the  question  whether  or  not  the  possession  of  the  bankrupt-s  in 
this  ease  were  consistent  with  the  deed  under  wiiich  they 
claimed  from  John  Horn:  for  the  very  object  of  the  statute 
was  to  prevent  the  true  owner  from  enabling  another  to  hold 
himself  out  to  the  world  as  sucli,  and  thereby  gjiin  a  false  credit ; 
and  this  being  a  secret  deed,  the  world  could  know  nothing  of 
its  contents.  It  was  pressed  in  the  course  of  the  lirst  argument, 
that  the  reputed  ownership  mentioned  in  the  statute  nitisl  l)e 
understood  where  there  was  a  power  «>f  sale  confided  to  the 
bankrupt  by  the  true  owner ;  and  reference  was  made  to  the 
words  of  Lord  Manxfuhl  in  Mace  v.  Cadfll,  that  the  statute  di<l 
not  extend  to  all  possible  cases  where  oiu;  man  had  anotlu-r 
man's  goods  in  his  possession,  as  the  case  of  factors,  &c.,  who 
have  the  possession  as  trustees,  &c.,  to  stll  for  thf  uxc  of  their 
principal:  "but  the  goods  must  be  such  as  tlie  party  suffei-s  the 
trader  to  sell  ox  his  own.''  Hut  this  last  ex[)ression  was  evi- 
dently used  in  contradistinction  to  tiie  case  of  factors,  &c.,  who 
sold  for  other  persons  and  not  tor  themselves.  And  he  couhl 
not  have  meant  to  lay  it  down  generally  ;  for  that  was  not  the 
case  of  a  sale :  but  the  facts  there  were,  that  the  owner  let  the 
bankrupt  into  her  house,  where  he  passed  as  her  husband:  but 
she  never  gave  him  the  power  of  selling  the  goods,  and  he 
never  had  sold  them ;  yet  by  treating  him  as  her  husband  she 
had  given  him  the  reputation  of  being  the  owner  of  the  goods; 
which  was  held  to  bring  the  case  within  the  statute.  As  to  the 
case  of  Bri/aon  v.  Wi/Iic,  on  which  my  Lord  has  observed.  Lord 
Mansfield  certainly  considered  the  whole  as  a  trick  and  con- 
trivance to  evade  the  statute:  and  what  was  said  by  Mr.  .Jus- 
tice Buller  goes  the  whole  length  of  our  opinion  in  this  case  ; 
that  a  factor,  who  must  in  the  course  of  his  business  have  other 
persons'  goods  in  his  possession,  does  not  thereby  gain  a  false 
credit;  but  that  where  the  conduct  of  the  true  owner  enables 
another  in  whose  hands  the  goods  are,  to  hold  out  to  the  world 
the  reputation  of  ownership,  he  thereby  gives  that  other  a  false 
credit  to  the  extent  of  the  property  so  confided  ;  for  which  the 


HOKN    V.    BAKEK.  1489 

statute  meant  to  make  him  responsible.  It  is  often  a  question 
of  fact,  whether  the  possession  of  goods  do  hold  out  a  reputed 
ownership  in  the  possessor,  as  in  the  case  of  furniture  in  lodg- 
ings. In  the  present  case  the  opinion  which  we  have  formed 
from  the  facts  stated  will  make  it  necessary  to  inquire  which 
of  these  articles  are  fixtures,  and  which  are  not :  and  for  the 
value  of  the  fixtures  when  ascertained,  and  be}ond  that,  for  the 
damage  which  may  have  been  done  to  the  house  in  removing 
the  fixtures,  the  plaintiff  will  be  entitled  to  recover. 

Le  Blanc,  J.  —  The  question  is,  whether  the  bankrupts  hav- 
ing obtained  the  reputed  ownership  of  tlie  moveable  utensils  of 
the  trade  by  possession  of  them  before  and  at  the  time  of  the 
bankruptcy,  acquired  the  real  ownership  by  the  statute  for 
the  benefit  of  their  creditors  ?  I  lay  out  of  consideration  the 
question  of  re-entry  of  the  plaintiff :  for  I  do  not  think  that  it 
makes  any  difference  in  this  case.  This  decision  will  only  be 
an  authority  for  a  case  where  the  bankrupts  were  in  possession 
of  utensils  necessary  for  carrying  on  their  trade  under  a  lease ; 
and  where  there  Avas  no  usage  of  the  trade  for  the  trader  to 
have  such  utensils  let  to  him  on  hire.  Wherever  such  a  usage 
of  trade  may  prevail,  the  case  may  deserve  another  considera- 
tion. I  must  take  it  upon  the  facts  here  disclosed,  that  John 
Horn  was  the  owner  of  the  utensils  in  question  before  the  deed 
of  March,  1801  ;  though  that  fact  is  very  clumsily  stated  in  the 
case :  the  court,  however,  considers  that  by  some  means  or 
another,  which  do  not  distinctly  appear,  these  utensils  were 
the  property  of  John  Horn ;  and  he  demised  them  to  the  bank- 
rupts, who  were  to  carry  on  the  trade  after  he  withdrew  from 
it ;  and  without  these  articles  he  could  not  have  carried  on  the 
trade ;  and  there  is  no  usage  in  the  trade  for  letting  such 
utensils.  The  question  then  is,  whether  under  these  circum- 
stances, the  bankrupts  had  the  possession,  order,  and  disposition 
of  the  goods  by  the  consent  of  the  true  owner  ?  I  think  they 
had.  For  though  there  are  many  exceptions,  as  in  the  case  of 
factors,  bankers,  and  others  who  are  known  to  have  the  goods 
of  other  persons  in  their  possession ;  none  of  wliich,  it  is  true, 
are  expressly  excepted  in  the  statute ;  yet  the  ground  of  all  the 
exceptions  has  been,  that  the  possession  of  such  and  such  de- 
scriptions of  persons  did  not  carry  to  the  understanding  of  the 
world  the  reputed  ownership.  The  same  rule  might  extend  to 
furniture  let  with  a  house,  and  perhaps  even  to  furniture  let 


1490  IIOIIN    S.    liAl^l.i;. 

without  tlic  house  to  h«'  usimI  theiu,  wliere  Hiu-h  letting^  were 
usuiil ;  ;iii(l,  hy  :i  parityof  reason,  to  utfiisils  of  tnuli*  usually 
let  to  the  tiiuk'is  ;  U'ciiuse  possession  in  su«h  cast's  wouhl  not 
carry  the  reputed  ownership  of  tlie  property,  ami  wouhl  not 
impose  on  the  worhl  a  false  appearance  of  property  in  the 
possessor. 

The  verdict  to  Ihj  entered  for  the  plaintiff  for  the 
value  of  the  fixtures  only,  anil  the  daniaj^e  done 
in  removing  them. 


Onf.  of  the  points  docldod  in  tills  rase,  viz.,  that  Axtureii,  such  ns  ilu'  stills 
in  tin-  trxt,  arc  not  •yoiMls  nnd  cliattfls,"  within  tin*  nit-nnln:;  of  tin-  Itnnk- 
rnpt  Act,  so  as  to  pass  to  tlu'  a.ssi;;nfrs  [or  now  to  tin*  trnstf-j  an  ^immIs  Iq 
tlur  ordtTln;;  or  disposition  of  tin*  bankmpt,  has  Iw-vn  aninm-d  in  srvvral 
sul)si'(pK-nt  casi's,  [and  llu'  coursf  of  hankrnptry  Uxl^latlon  appear*  to  have 
made  no  iliHeronce  in  this  respect,  thon;;h  sonic  complexity  arises  from  the 
fact  that  in  the  Bills  of  Sale  .Vets,  both  that  of  1854  (17  &  IM  Vict.  c.  36), 
now  repeiiled.  and  that  of  1h7«  (41  i  42  Vict.  c.  IM).  Oxtnres  an*  iiiclnded  In 
the  desij^nation  personal  chattels,  sec  ss.  4,  o  &  7,  and  untf.  p.  22.'»J. 

In  Clurk-  V.  ('nnrn»hiitr,  ;j  H.  &  .\i\.  so4,  the  decision  of  the  court  was 
ex|)ressly  fonnded  on  the  anthorlty  of  Jlnrn  v.  Ilikrr.  In  Cintmheg  v.  JUau' 
mmit,  't  H.  &  Ad.  7*2,  it  was  held,  that  a  steani-enyine  altlxeil  to  the  fr»'ehohI 
for  the  pnrpose  of  working;  a  «olliery.  and  t«>  Iw  used  hy  the  leii.int  dnrint; 
his  term,  the  property  renialnin^  In  the  landlonl.  w<iuld  nc»t  pass  to  tin-  ten- 
ant's assignees.  "  Tlie  steam-engine,"  saUl  Tarke.  .1..  ••  If  alllxe«l  to  the  free- 
hold, clearly  docs  not  pass  to  the  a.sslj;nees,  In-canse  It  does  n«»t  come  within 
the  description  of  '  goods  and  chattels,"  in  «*•  (1.  4.  c.  HI,  s.  72.  This  was  deter- 
mined in  the  case  of  //«>•»(  v.  Ihiktr,  antl  since  that  case,  as  far  as  my  experi- 
ence goes,  I  never  knew  that  any  distinction  was  made  between  such  tlxtnres 
as  would  be  removable  between  lamllord  and  tenant,  and  such  as  would  not." 

In  linijdU  V.  M' Mirhml,  1  C.  .M.  &  H.  177,  the  .same  iloetrlne  was  again 
atlinned  and  acted  upon  by  the  Court  of  Kxche<|ner.  In  that  <-ase,  a  ten- 
ant for  years,  who  had  taken  the  fixtures  at  a  valuation  from  his  landlord, 
mortgaged  the  term  and  fixtures,  and  afterwanls  became  bankrupt;  they 
were  held  not  to  pass  to  his  assignees.  ••  The  real  nature  of  the  tenant's 
interest,"  said  Parke,  B.,  "  In  this  case  Is,  that  he  hatl  a  right  to  remove  the 
fixtures  during  the  term  :  that  interest  has  l)een  held  sufilcient  to  enable  the 
sheritt'to  seize  them  under  a.  fi.  fn.;  but  IIi>ru  v.  Baker  decides  that  they  arc 
not '  goods  and  chattels'  within  the  meaning  of  the  clause  as  to  the  order  and 
disposition  of  the  bankrupt.  The  nason  uf  thin  is,  that  fith  rei/anl  to  real 
propcrtij  the  jwssession  is  considered  as  nothing,  hut  the  title  nnhj  is  Imtked  to." 

In  Hallen  v.  liunder,  1  C.  M.  &  R.  2(56,  cited  in  the  beginning  of  the  last 
note,  the  court  thought  that  fixtures  could  not  properly  be  denominated  f/onds 
in  an  indebitatus  count,  though  their  value  might  be  recovered  in  a  count  for 
fixtures  bargained  and  sold,  [and  see  Lee  v.  (Jaskell,  1  Q.  B.  D.  700].  .Vnd  In 
Minshnll  v.  Llo>id,  2  M.  &  W.  4.^0,  Parke,  B.,  said.  "  I  assent  to  the  doctrine 
laid  down  in  Coombrs  v.  Beamnont.  and  Boi/dell  v.  .y'Mirhail.  that  sucli  fix- 
tures are  not  goods  aud  chattels  withiu  the  muauiug  of  the  bankrupt  law, 


HORN  V.   BAKEK.  1491 

though  they  are  goods  and  chattels  when  made  such  by  the  tenant's  severance, 
or  for  the  benefit  of  execution  creditors." 

In  Trappes  v.  Barter,  3  Tyrwh.  603,  2  C.  &  M.  183  (which  is  said  by  Parke, 
B.,  in  Minshall  v.  Lloyd,  2  M.  &  W.  -iSO,  to  have  been  doubted),  trading  fix- 
tures were  held  to  pass  to  the  assignees  of  certain  bankrupts,  as  part  of 
their  propertj',  and  the  assignees  having  severed  and  removed  tliein,  it  was 
held  that  a  mortgagee  of  the  premises  (the  mortgage  deed  having  been  de- 
cided by  the  court  not  to  convey  these  fixtures)  could  not  maintain  case 
against  them  for  injury  to  his  reversion.  This  decision,  it  will  be  seen,  is 
not  at  all  at  variance  with  Horn  v.  Baker.  Undoubtedly  if  the  fixtures  did 
not  pass  by  the  mortgage  deed,  the  assignees  [or,  now  the  trustee]  would 
take  them ;  and  whether  as  personal  estate  or  not  seems  immaterial.  See  the 
note  at  the  end  of  the  report  of  Trappes  v.  Uarter,  2  C.  &  M.  183;  [the  obser- 
vations on  this  case  in  the  judgment  in  Walmsley  v.  Milne,  7  C.  B.  N.  S.  133]  ; 
Pirn  V.  Grazebrook,  3  M.  &  G.  863;  and  Thompson  v.  Pettitt,  10  Q.  B.  101. 

It  is  conceived  that  a  personal  chattel  fixed  to  the  freehold  in  order  to  the 
more  convenient  use  of  the  chattel  as  such,  as  was  the  case  with  the  machine 
in  Hellawell  v.  Eastioood,  6  Exch.  295,  M'ould  not  be  within  the  above-mentioned 
exception  of  fixtures  from  "  goods  "  in  the  reputed  ownership  section  of  the 
Bankrupt  Act. 

[In  Ex  parte  Tweedy,  5  Ch.  D.  559,  a  liquidating  debtor  Avho  was  assignee 
of  a  lease  deposited  with  certain  ])ankers  by  way  of  equitable  mortgage  the 
instrument  whereby  the  lease  had  been  assigned  to  him,  which  also  contained 
an  assignment  by  distinct  words  of  certain  machinery  and  trade  fixtures  for 
a  separate  consideration.  The  mortgagees  had  suflered  the  bankrupt  to 
remain  in  possession  of  the  fixtures.  The  point  actually  decided  was,  that 
without  a  memorandum  duly  registered  as  a  bill  of  sale,  the  deposit  was 
invalid  against  the  trustee  qua  the  fixtures;  but  Bacon,  C.  J.,  expressed  an 
opinion  that  had  the  objection  based  upon  the  Bills  of  Sale  Act  failed,  the 
fixtures  and  machinery  would  have  passed  to  the  trustee  as  being  in  the  order 
and  disposition  of  the  debtor,  with  the  consent  of  the  true  owner. 

Where  a  portable  steam-engine  was  mortgaged  by  the  owner,  but  left  by 
the  mortgagee  in  the  possession  of  the  mortgagor,  who  lent  it  on  hire  to  a 
third  person,  and  became  bankrupt,  it  was  held  that  the  engine  passed  to  the 
mortgagor's  assignees,  under  the  reputed  ownership  clause  of  the  12  &  13 
Vict.  c.  106,  although  the  chattel  was  not  at  the  time  of  the  bankruptcy  in 
the  actual  possession  of  the  bankrupt,  but  was  by  his  permission  in  the 
actual  possession  of  the  person  to  whom  he  had  lent  it.  Hornsby  v.  Miller, 
I  E.  &  E.  192;  see  also  Fresliney  v.  Carrick,  1  H.  &  N.  653. 

The  question  whether  goods  are  in  the  order  and  disposition  of  a  bankrupt 
by  the  consent  of  the  true  owner  is  a  question  of  fact,  not  of  law :  Acraman 
V.  Bates,  2  E.  &  E.  456;  Ex  parte  Emerson,  41  L.  J.  Bey.  20;  and  is  to  be 
determined  by  taking  all  the  circumstances  into  consideration,  such,  for 
instance,  as  the  custom  of  a  particular  trade;  but  the  knowledge  or  igno- 
rance of  an  individual  creditor,  as  to  the  ownership  of  goods,  is  not  material : 
Ex  parte  Watkins,  re  Couston,  L.  K.  8  Ch.  520;  Ex  parte  Vaux,  L.  E.  9  Ch. 
602;  see  also  Ex  parte  Lovering,  L.  R.  9  Ch.  621.  But  the  custom  must  be 
such  that  the  ordinary  creditors  of  a  debtor  must  be  pi-esumed  to  have  known 
it:  Ex  parte  Powell,  1  Ch.  D.  501,  C.  A.  As  to  what  evidence  of  custom  is 
sufficient,  see  ibid. ;  Ex  parte  Hattersley,  8  Ch.  D.  601.  As  to  the  custom  of 
hiring  furniture  by  hotel  keepers  and  others,  see  Craiocour  v.  Salter,  18  Ch. 
D.  30,  51  L.  J.  Ch.  495 ;  Ex  parte  Brooks,  re  Fowler,  23  Ch.  D,  261 ;  Ex  parte 


1492  HOllN     V.    llAlvl.K. 

Turquand,  re  Parker,  14  Q.  B.  D.  Oao,  54  L.  J.  Q.  B.  242.  Wlu-ro  the  true 
owners  liavc  done  all  in  their  powiT  to  obtain  posaes!*ion  of  their  property, 
the  presumption  of  their  consent  is  therehy  rebutted :  A'r  jKirt"  X.  H'.  Bank. 
L.  11.  15  Eq.  Ot);  Kx  parte  Ward,  L.  K.  8  C'h.  144;  and  see  AV  /»art«;  Montayue, 
1  Ch.  D.  .">54,  C.  A.;  Ex  parte  I'hillips,  re  EsUck,  4  I'h.  1>.  4'Jt;.] 

The  case  of  Ilnni  v.  linker  is  a  iiscfnl  one  on  account  <»f  tin-  llyht  thrown 
by  the  discussion  in  it  on  the  construction  of  the  reputi-d  owiit-r^hlp  clausi-  In 
tlie  Bankrupt  .Vet.  At  the  time  of  the  ilecisioii  in  tin-  prlm-ipal  cast-,  that 
suljject  was  K'>verned  by  21  .lac.  1,  c.  I'J,  ss.  10  and  11.  which  wrre  at  first  so 
little  acted  upon,  that  no  case  occurretl  In  whirh  their  opi-ration  wa.H  «lls- 
cussed  for  upwarils  of  a  century.  The  former  of  these  two  sections  Is  a 
more  recital  made  liy  a  misprint  into  a  separate  section,  and  yave  rl.ne  to 
sonic  doubt,  in  consei|Ucnce  of  its  Ijcini;  narrower  than  the  enactment,  so 
that  it  ai)parently  a])plied  only  to  property  which  had  once  i*een  the  bank- 
rupt's; and  it  wjus  for  some  time  thou<;ht  that  such  property  only  was 
included  in  the  eleventh  section,  an  itlea  whicli  the  analogy  to  the  statutes 
rcspectiui;  fraudulent  conveyances  appeared  to  countenance.  These  doubts, 
however,  were  removed  l)y  Mace  v.  Cadill,  ("owp.  2:i2 ;  and  the  ubnoxloUM 
recital,  winch  was  onntted  in  G  Geo.  4,  c.  I'J.  s.  72,  and  succeedlnc  statutes, 
[is  also  omitted  in  4(J  &  47  Vict.  c.  52  (The  Bankruptcy  Act.  1KH;{),  h.  44,  by 
which  the  subject  is  now  ;;overnetl.  That  section  like  the  corresponding;  .sec- 
tions of  former  enactnu-nts.  is  with  some  dltferences  to  be  noted  hereafter, 
substantially  identical  in  form  with  the  enactment  <>f  .lames,  the  decisions 
upon  which  are  consc<|Uently  f«u-  the  most  part  autiiorltles  on  the  construc- 
tion of  tlie  present  law. 

Clinses  in  mtion,  however,  other  than  trade  debts  an*  expressly  excludetl 
from  the  operation  of  the  present  as  from  the  late  enactment,  '.Vl  &.  '.V.\  Vict. 
c.  71,  s.  15.  .^Iiares  in  a  company  were  lield  not  to  be  rhnsis  in  action  within 
this  exception:  Ex  parte  Union  Hank  of  Manchester,  re  Jackson,  L.  U.  12  Kq. 
354;  a  decision  which  was  followed  by  the  Court  of  Appeal,  Fry,  L.  J.,  dis- 
sentinjr,  in  Colonial  Bank  v.  Whinneij,  decided  under  the  Act  of  1H,S,3.  30 
Ch.  I).  2til  ;  55  L.  .T.  Ch.  585.  On  appeal,  however,  tlie  House  of  Lords 
reversed  this  decision,  and  held  that  such  shares  were  "  thinirs  in  action,"  11 
App.  Ca.  42fi.  See  al.so  Ex  parte  Harry,  L.  K.  17  Eq.  113.  A  debenture  of  a 
company  is  a  chose  in  action,  Ex  parte  liensbenj,  4  Ch.  I).  085;  so  is  a  |»ollcy 
of  insurance.  Ex  parte  Ihhetson,  8  Ch.  1).  519.  As  to  what  were  debts  due 
witliin  the  section,  see  Ex  parte  Kemp,  re  Eastnedi/c,  L.  U.  It  Ch.  383. 

Moreover,  now  as  under  the  late  Act  (ss.  15,  17),  property  In  the  reputed 
ownership  of  the  bankrupt  vests  in  the  trustee  upon  his  appointment  (see  s. 
54),  without  an  order  of  the  Court,  which  was  necessary  before  the  statute 
of  1S69],  see  Ileslop  v.  Baker,  6  Exch.  740. 

[The  property  dealt  with  by  the  reputed  ownership  clause  of  the  present 
enactment  is  thus  described:  —  "All  goods"  (which  by  s.  108  includes  "all 
chattels  personal")  "  being  at  the  commcucenient  of  the  bankruptcy  in  the 
possession,  order,  or  disposition  of  the  bankrupt,  in  his  trade  or  husiness,  by 
the  consent  and  permission  of  the  true  owner  under  such  circumstancts  that 
he  is  the  reputed  OAvner  thereof ;  provided  that  things  in  action  other  than 
debts  due  or  groicing  due  to  the  bankrupt  in  the  course  of  his  trade  or  busi- 
ness, shall  not  be  deemed  goods  Avithiu  the  meaning  of  this  section  "  The 
words  in  italics  are  new. 

The  words  "  in  his  trade  or  business,"  which  are  substituted  for  the  words 
"  being  a  trader,"  of  the  late  act,  limit  the  operation  of  the  clause,  see  Ez 


HORN  V.   BAKER.  1493 

parte  Lovering,  24  Ch.  D.  31;  52  L.  J.  Ch.  951;  Ex  parte  Nottingham,  dx., 
Bank,  re  Jenkinson,  15  Q.  B.  D.  441 ;  54  L.  J.  Q.  B.  601 ;  Colonial  Bank  v. 
Whinney,  supra,  though  the  introduction  of  tlie  words  "  or  business  "  extends 
it  to  a  class  of  persons  who  not  being  traders  were  not  covered  by  the  former 
enactment;  see  as  to  what  is  a  trade  or  business,  In  re  Wallis,  ex  parte  Sully, 
14  Q.  B.  D.  950. 

The  words  of  the  former  section  "  of  which  he  lias  taken  upon  himself  tlie 
sale  or  disposition  as  owner  "  are  omitted.  Goods  left  with  tlie  bankrupt  on 
sale  or  return,  Avere  held  not  to  come  under  the  former  clause  until  he  had 
exercised  his  option  of  keeping  them:  Ex  parte  Wingfield,  in  re  Florence,  10 
Ch.  D.  591. 

So  of  goods  consigned  by  a  manufacturer  to  an  agent  for  sale  at  an  advance 
to  be  fixed  by  the  agent  and  retained  hy  him,  he  guaranteeing  the  accounts, 
were  held  not  to  be  in  the  reputed  ownership  of  the  agent :  Ex  parte  Bright, 
re  Smith,  10  Ch.  D.  566.] 

Although  fixtures,  as  we  have  seen,  [were]  not  within  the  meaning  of 
the  reputed  ownership  clause,  all  personal  chattels  [fell]  within  it.  Ships, 
Stephens  v.  Sole,  1  Ves.  352;  Atkinson  v.  Maling,  2  T.  li.  462;  Hay  v.  Fair- 
bairn,  2  B.  &  A.  193;  Monkhouse  v.  Hay,  2  B.  &  B.  120;  unless,  in  the  case  of 
transfers  by  way  of  mortgage,  such  transfers  [had]  been  registered  before 
an  act  of  bankruptcy,  17  &  18  Vict.  c.  104,  ss.  66-75 ;  [Choses  in  action, 
which  are  now  expressly  excepted;]  Furniture,  Lingham  v.  Biggs,  1  B.  &  P. 
82 ;  Utensils  of  trade,  Lingard  v.  Messiter,  1  B.  &  C.  308  (except,  perhaps, 
when,  as  hinted  in  the  principal  case,  there  [was]  a  usage  to  demise  them  to 
the  trader),  [were]  all  of  them,  if  in  the  possession,  ordering,  or  disposition 
of  the  bankrupt,  as  reputed  owner,  with  the  consent  of  the  true  owner,  at 
the  time  of  his  bankruptcy,  [held  to]  pass  to  his  assignees,  by  virtue  of  the 
12  &  13  '*ict.  c.  106,  s.  125. 

[A  dormant  partner's  share  of  partnership  goods  was  held  to  be  within 
that  section,  Reynolds  v.  Boicley,  L.  R.  2  Q.  B.  41,  474;  but  a  share  in  a  part- 
nership being  a  chose  in  action  would  be  excluded  from  the  operation  of  the 
present  Bankruptcy  Act :  Ex  parte  Fletcher,  8  Ch.  D.  218.] 

In  Gibson  v.  Overhury,  7  M.  &  W.  555,  a  distinction  was  drawn  between  the 
actual  paper,  or  other  material  on  which  a  contract  is  written,  and  the  benefit 
of  the  contract  itself,  and  in  that  case  a  pledge  was  holden  sufficient  to  pass 
the  paper  on  which  a  policy  of  insurance  was  written,  although,  for  want  of 
notice  to  the  office,  the  right  to  the  money  insured  remained  in  the  assignees 
of  the  bankrupt.  See  also  Belcher  v.  Campbell,  8  Q.  B.  1 ;  [Green  v.  Ingham, 
L.  R.  2  C.  P.  525,  where  Gibson  v.  Overbury  was  distinguished]  and  as  to 
whether  goods  mortgaged  by  a  trader  before  his  bankruptcy,  but  in  the  hands 
of  the  sheriff  under  an  execution  against  the  bankrupt,  can  be  considered  to 
be  in  his  order  and  disposition  with  the  consent  of  the  true  owner,  see 
Fletcher  v.  Manning,  12  M.  &  W.  571. 

[The  doctrine  of  reputed  ownership  applies  only  to  goods  in  the  sole  pos- 
session of  the  bankrupt  as  sole  reputed  owner,  Ex  parte  Barman,  L.  R.  8  Ch. 
51 ;  Ex  parte  Fletcher,  3  Ch.  D.  518 ;  but  goods  may  be  in  the  order  and  dis- 
position of  one  partner  "  in  his  trade  or  business,"  although  his  business  is 
that  of  the  partnership,  and  the  goods  are  assets  of  the  firm,  Colonial  Bank 
V.  Whinney,  30  Ch.  D.  261;  55  L.  J.  Ch.  585;  where  shares  bought  for  part- 
nership purposes  and  with  partnership  funds  were  held  to  be  in  the  order  and 
disposition  of  the  partner  in  whose  name  they  were  registered.  The  judg- 
ment of  the  C.  A.  on  this  point  does  not  appear  to  be  afiected  by  the  subse- 


l-i'.t4  Ilnl;N    v.    I'.AKKi:. 

qiu'iit  reversal  of  their  (U'clsloii  upon  otluT  t;r<>iin(l.s  by  the  IIouho  of  I^rtU, 
11  .\\>l>.  <u.  42t;.  As  to  till-  -- npimrnit  poss«-?i«.liin  "  uihIit  the  HllU  *»(  Saltj 
Act,  1H,"»4,  of  OIK'  of  two  joint  iiiukcrs  of  a  hlU  of  haU',  hee  Ar  piirtr  Jtruttn,  9 
Ch.  I).  ^M'J. 

It  iiuiy  be  observed  here  that  Hxtures  were  comprised  within  the  words 
"personal  ehaltels  "  as  used  in  the  Bills  of  Sale  Act,  1H54  (17  i  IH  Vict, 
c.  3C).  These  words  were  defined,  by  »  7  of  the  act,  to  mean  "  jjimkN,  furni- 
ture,///•^h/vji,  and  other  articles  capable  of  conipleti*  transft-r  by  tiellvery." 

Ti>e  Hills  of  Sale  Act,  1H7H  (41  i  VJ  Vict.  c.  :Jl),  also  Includes  tlxtures,  hut 
in  u  limited  sense,  as  detlned  by  the  act,  under  the  desijrnation  pcrHonnl  eliat- 
tels,  and  contains  provisions  dealln;;  with  *lil11<-tdties  which  arosr  in  reference 
to  this  (piestlon  under  tin-  forim-r  enactment.  (See  the  notes  to  KlfeM  v. 
Mcvpi',  ante.) 

It  also,  by  s.  'JO,  excluded  from  the  operation  of  the  reptittMl  ownership 
clauses  of  till-  Hankruptcy  Act,  jjocmIs  comprised  in  a  bill  of  sole,  tluly  reKi.n- 
tered  in  compliance  with  Its  provisions,  thereby  altering  the  law  as  laid  down 
in  Iliihjir  V.  Sfi'ii",  2  E.  &  E.  472,  ami  otln-r  cases  decided  under  the  fitnm-r 
statute,  but  tliat  section  has  been  repealed  as  to  all  bills  of  sale  eXreutetl 
after  the  Isl  Novemlier.  1SH2,  by  the  Dills  of  Sale  Act,  1«M2,  and  the  law  In 
thus  restored  to  its  former  footlni;;  see  A"r  parlf  hunl,  re  ('hupiiU,  23  Cli. 
1).  40'.»,  .-,2  L.  J.  Ch.  M02;    Stri/l  v.  Ihmiftl,  24  fh    I)   2l0.  .Vl  L,  .1   Ch.  341. 

As  to  the  ditlerence  between  reputetl  ownership  and  •■  apparent  po.H.He.sslon  " 
under  the  Bills  of  Sale  Acts,  see  Ex  parte  Satiunal,  Jkc,  Asturance  Co.,  rt 
Frnncia,  10  Ch.  D.  40a.] 


WAIN  V.  WARLTERS. 


EASTEE.  —  U  GEO.  3. 
[reported  5  EAST,   10]  (a). 

No  person  can.,  hy  the  Statute  of  Frauds,  he  charged  upon  any 
promise  to  pay  the  debt  of  another,  unless  the  agreement  upon 
tvhich  the  action  is  brought,  or  some  note  or  memorandum  thereof 
he  in  writing;  hy  which  word  agreement  must  he  understood 
the  consideration  for  the  promise,  as  ivell  as  the  promise  itself. 
And  therefore  ivhere  one  promised  in  writing  to  pay  the  deht  of 
a  third  person,  without  stating  on  what  consideration ;  it  ivas 
holden  that  parol  evidence  of  the  consideration  ivas  inadmissihle 
hy  the  Statute  of  Frauds ;  and  consequently,  such  p>romise 
appearing  to  be  without  consideration  upon  the  face  of  the 
written  engagement,  it  was  nudum  pactum,  and  gave  no  cause 
of  action. 

The  plaintiffs  declared  that  at  the  time  of  making  the  promise 
after  mentioned  they  were  the  indorsees  and  holders  of  a  bill  of 
exchange,  dated  the  14th  of  February,  1803,  drawn  by  one 
W.  Gore  upon  and  accepted  by  one  J.  Hall,  whereby  Gore 
requested  Hall,  seventy  daj^s  after  date,  to  pay  to  his.  Gore's 
order,  56/,  IGs.  Qd.\  which  bill  of  exchange  Gore  had  before 
then  indorsed  to  the  plaintiffs,  and  which  sum  in  the  bill  men- 
tioned was  at  the  time  of  making  the  promise  by  the  defendant 
due  and  unpaid.  And  thereupon  the  plaintiffs,  before  and  at 
the  time  of  making  the  said  promise  by  the  defendant,  had 

(o)  [Now  by  s.  3  of  the  Mercantile  guarantee  need  not  appear  upon  the 
Law  Amendment  Act,  1856  (19  &  20  face  of  the  written  engagement.  See 
Vict.  c.  97),  the  consideration  of  a      jwst  in  nota.~\ 

1495 


14'J0  WAIS-     v.     WAICLTKUS. 

retained  one  A.  as  their  attorney  to  sue  (iore  and  Hall  resjK'c- 
tively  for  the  recovery  «>f  the  said  sum  so  due,  A:e.,  \vl»ereof  tlio 
defen(hint,  at  the  time  of  his  promise,  &c.,  liad  notieu.  And 
thereupon,  on  the  iiOth  of  April,  180:^,  at,  &c.,  in  t'oni$iileration 
of  the  j>n'>iiisis  and  that  the  jttttinfiff'H,  at  the  instance  of  the 
(U'fendant,  iroii/t/  f'i>rf>ear  to  j)n)ceed  for  tlie  recovery  of  the  said 
;")»;/.  lii.v.  •;</.,  he,  till'  dtfen<hint,  undertook  and  promised  the 
pliiintilTs  to  pay  them,  \>y  half-past  four  o'clock  «)n  that  day, 
T)!)/.  iind  the  ejpenxex  which  had  then  heen  inrurml  hy  iIhmu  <'/i 
the  xdiil  hill.  riie  plaintifl's  then  averre<l  that  they  di<l,  uithin 
a  reasonahle  time  after  the  d»>fcndant's  promis«>,  stay  all  pro- 
ceedings for  the  recovery  of  the  said  deht,  and  have  iiitherto 
forfinrne  to  proceed  for  the  recovery  thereof;  and  that  the 
expenses  hy  them  incurred  on  the  said  hill  at  the  time  of 
making  the  [)romise  hy  the  <lefendant,  and  in  resjM-ct  of  their 
having  so  retained  the  siii<l  A.,  and  on  account  of  his  having, 
before  the  defendant's  said  pr«»mise,  drawn  and  engrossed  certain 
writs  called  s|tccial  capias,  against  (ion*  and  IhtU  respectively 
on  the  said  hill,  amounted  to  •201.,  of  which  the  difcndant  had 
notice:  yet  the  defendant  did  not,  at  half-piust  four  o'clock  on 
that  day,  \'c.,  nor  at  any  time  U'fore  or  since,  pay  tiie  said  sum 
of  5t>/.  and  the  said  ex})enses  incurred,  *.^c.  There  was  another 
special  count,  charging  that  the  reiusonahle  expenses  incurred 
on  the  hill  were  so  iiiiich.  which  the  defendant  had  refusc<l  to 
j)ay.     And  the  connnon  money  counts. 

In  support  of  the  undertaking  laid  in  the  declaration,  the 
plaintilTs,  at  the  trial  at  Guildhall,  produced  the  written  engage- 
ment signed  hy  the  (h'fcndant,  which  was  in  tln'se  words: 
"Messrs.  Wain  and  i\K,  I  will  engage  to  pay  you  hy  half  past 
four  this  day,  fifty-six  pounds  and  expenses  on  hill  that  amount 
on  Hall.  (Signed)  .Inn.  Warlters  (and  dated).  No.  2,  Cornhdl, 
April  30th,  1808,"  Whereupon  it  was  objected,  on  the  part  of 
the  defendant,  that  though  the  promise,  which  w;vs  to  pay  the 
debt  of  another,  was  in  writinr/,  as  re([uired  by  the  Statute  of 
Frauds,  yet  that  it  did  not  express  the  ron»i deration  of  the 
defendant's  promise,  which  was  also  required  by  the  statute 
to  be  in  \yriting;  and  that  this  omission  could  not  he  supplied 
by  parol  evidence  (which  the  plaintiffs  proposed  to  call  in  order 
to  explain  the  occasion  and  consideration  of  giving  the  note); 
and  that  for  want  of  such  consideration  appearing  upon  the  face 
of  the  written  memorandum,  it  stood  simply  as  an  engagement 


WAIN    V.   WARLTERS.  1497 

to  pay  the  debt  of  another  without  any  consideration,  and  was, 
therefore,  nudum  pactum  and  void.  And  Lord  Elleyiborongh^ 
C.  J.,  upon  view  of  the  Statute  of  Frauds,  29  Car.  2,  c.  3,  s.  4, 
which  avoids  any  special  promise  to  answer  for  the  debt  of 
another,  "  unless  the  agreement  upon  which  the  action  shall  be 
brought,  or  some  memorandum  or  note  thereof,  shall  be  in 
writing,  and  signed  by  the  party  to  be  charged  therewith,"  &c., 
thought  that  the  term  agreement  imported  the  substance  at  least 
of  the  terms  on  which  both  parties  consented  to  contract,  and 
included  the  consideration  moving  to  the  promise,  as  well  as  the 
promise  itself:  and  the  agreement  in  this  sense  not  having  been 
reduced  to  writing  for  want  of  including  the  consideration  of 
the  promise,  he  thought  it  could  not  be  supplied  by  parol  evi- 
dence, which  it  was  the  object  of  the  statute  to  exclude ;  and 
therefore  nonsuited  the  plaintiffs.  A  rule  nisi  was  obtained  in 
the  last  term  for  setting  aside  the  nonsuit  and  granting  a  new 
trial,  on  the  ground  that  the  statute  only  required  the  proinise 
or  binding  part  of  the  contract  to  be  in  writing,  and  that  parol 
evidence  might  be  given  of  the  consideration,  which  did  not  go 
to  contradict,  but  to  explain  and  support  the  written  promise. 

Grarrow  and  Lawes  showed  cause  against  the  rule.  —  The 
question  is  simply  this.  Whether  parol  evidence  can  be  given  of 
an  agreement  which  the  Statute  of  Frauds  avoids,  unless  it  be  in 
writing  ?  The  words  are,  "  that  no  action  shall  be  brought 
whereby  to  charge  the  defendant  upon  any  sj)ecial  promise  to 
answer  for  the  debt,  &c.,  of  another  person,  &c.,  unless  the 
agreement  upon  which  such  action  shall  be  brought,  or  some 
memorandum  or  note  thereof,  shall  be  in  ivriting,  and  signed 
by  the  party  to  be  charged  therewith,"  &c.  Now  to  every 
agreement  there  must  be  at  least  two  parties ;  and,  in  order  to 
make  it  available  in  law,  there  must  be  some  consideration  for 
it;  which  necessarily  forms  part  of  the  agreement  itself,  being 
that  in  respect  of  which  either  party  consents  to  be  bound.  It 
is  no  answer  to  say  that  the  parol  evidence  offered  of  the  con- 
sideration, namely,  the  forbearance  to  sue  Hall,  did  not  go  to 
contradict  the  written  promise:  it  is  enough  that  being  part, 
and  a  material  part  of  the  agreement,  it  was  not  reduced  to 
writing  and  signed  by  the  party  to  be  charged,  as  required  by 
the  statute.  The  effect  of  such  parol  evidence,  if  admitted, 
would  be  to  render  valid  that  which,  so  far  as  appears  by  the 
writing  itself,  is  void  in  law  for  want  of  a  consideration ;  and 


14itH  WAIN     V.     WAKLTKKS. 

lliis  would  Ik'  letting'  in  iiU  tlic  iliiii«,'fis  of  fraiul  .mtl  |.i'ijiuv 
wliiili  it  was  the  t»l»ji'it  of  the*  stiitute  to  ^luml  against.  1'|m»u 
the  face  of  the  paper  the  deht  appears  to  Ik-  tlie  debt  of  uiiother; 
and  as  a  mere  promise  to  pay  the  debt  of  another,  without  uny 
consideration,  wonhl.  In-fore  the  statute,  have  U-en  void  im 
)tn(]ii III  j>nrt inn  at  common  hiw:  so  it  is  ni>t  made  good  l»y  the 
statute  without  a  consideration  in  hiw  for  entering  into  suj-h  an 
agieement;  wliieli  ui/rii-tiimt,  i.e.,  the  whide  agreement  or  soine 
memorandum  or  note  of  tlie  whole,  specifying  the  cuntrucling 
parties,  the  consideration,  and  tlie  promise,  must  lie  made  in 
writing.  The  eonsideiation  is  an  essential  part  i»f  every  oxeeu- 
tory  agreement;  and  this  was  altogether  executory,  on  the  part 
at  least  of  the  defendant.  If  the  agn-ement  had  U'en  declared 
on  as  in  writing,  the  mere  production  of  the  note  c»>uld  not  have 
})i()ved  the  consideration  of  ft»rlM*arance  laid  in  the  declaration; 
and  such  consideration  could  not  havi-  U-en  supplied  hy  |«irol 
evidence.  In  Prcxton  v.  J/» /•««•(/ »  («i ),  where  the  plaintifl  had 
agreed  in  writing  with  the  defendant's  testator  to  let  him  certain 
premises  at  a  certain  rent;  par«)l  evidence  tendere<l  to  show  that 
the  tenant  had  agreed  to  pay  a  certain  sum  for  grouml-riMit  t»» 
the  ground  landh)rd,  was  rejected  as  suhversivi*  of  the  Statute 
of  Frauds;  although  it  was  there  contended  that  the  t'vidence 
offered  diil  not  go  to  ^l^tl^r  hut  to  tjjilnin  the  agreement.  So  in 
G  Klin  is  \.  Ur/mrf  {f>^,  ihv  vcrhal  declaration  of  an  auctiom-er, 
at  the  time  of  a  sale,  that  there  was  a  charge  on  the  estate,  was 
dci'mi'd  ina<lmissil)le  to  i-ontradict  the  jirinteil  conditions,  which 
stated  the  premises  to  l)e  free  from  all  incunduanees. 

Urskine  and  Murri/nt,  in  support  of  the  rule  said,  that  the  evi- 
dence tendered  in  the  two  eases  citeil  went  n«)t  to  explain  but 
to  contradict  the  written  agreements;  in  the  one  ease  to  increiuse 
the  quantum  of  the  rent  specified,  in  the  other  to  subtract  so 
much  as  the  charge  amounted  to  from  the  value  of  the  estate, 
which  was  offered  for  sale  free  from  incumbrtutcex.  Hut  here 
the  parol  evidence  went  merely  to  show  on  what  ociasion  the 
written  agreement  had  been  entered  into:  and  it  is  in  common 
practice  to  admit  parol  evidence  for  such  a  purpose :  it  is  ])art 
of  the  res  i/estcc,  and  no  part  of  the  agreement  itself,  which 
must  in  its  nature  be  executory  at  the  time  of  the  writing  ma<le. 
The  foundation  of  the  action  in  this  case  is  not  the  writing,  but 
the  promise  by  the  defendant  to  pay  the  debt  of  Hall.     Tliis, 

(«)  2  Blac.  1241).  (h)   1  H.  Hlac.  289. 


WAIN    V.    WAKLTEllS.  A"*^^ 


before  the  Statute  of  Frauds,  might  have  been  proved  wholy 
by  oral  testimony,  but  since  that  statute  the  promise  can  only 
be  evidenced  by  writing    signed   by  the  party  to   be  charged 
therewith,  or  by  some  other  lawfully  authorised.     I    is  difficult 
indeed  to  account  for  the  introduction  of  the  word  agreement 
into  the  latter  part  of  the  clause,  which,  in  its  strict  sense,  as 
comi^ounded  of  ^^aggregatio  mentium,  or  the  union  of  two   or 
mor^  minds  in  a  thing  done  or  to  be  done  "  («),  is  more  properly 
applicable  to  the  other  branches  of    the    clause,  namely,      an 
curreeme^U  on  consideration  of  marriage,  or  upon  cantraetovs^le 
of  lands,  &c.,  or  upon  any  agreement  not  to  be  performed  withm 
the  space  of  one  year,"  &c.,  than  to  any  special  pronuse  by  an 
executor  to  answer  damages  out  of  his  own  estate,  or  to  any 
special  promise  to  answer  for  the  debt,  &c.,  of  another.      To 
such  promises  the  word  agreement  can  only  be  considered  appli- 
cable so  far  as  it  is  synonymous  to  engagement  or  undertaking, 
in  which  sense  it  is  often  used  in  common  parlance,  and  there- 
fore means  in  this  respect  the  agreement  or  promise  to  pay  the 
debt  of  another.    Besides,  the  statute  does  not  requii-e    he  whole 
agreement  to  be  set  out  in  form,  but  it  is  sufficient  if  there  be  a 
note  or  memorandum  of  it  in  writing;  that  is,  so  much  o    the 
agreement  as  is  obligatory  on  "the  party  to  be  charged  there- 
with"    In  whatever  form  of  words,  therefore,  the  promise  is 
made,  which  before  the  statute  would  have  been  evidence  to 
bind  the  party  making  it  under  the  circumstances  of  the  case, 
it  will,  if  those  words  are  reduced  into  writmg,  still  bind  him 
since  the  statute,  under  the  like  circumstances.     But  m  either 
case  the  inducement  for  making  such  promise,  which  is  part  of 
the  res  gestae,  may  be  evidenced  by  parol.      Thus,  suppose  a 
promise  in  writing  to  pay  the  expenses  attending  a  cer  am  bill 
drawn  by  another;  parol  evidence  must  necessarily  be   et  m  to 
show  to  what  bill  the  promise  was  meant  to  apply,  aud  how  the 
expenses  arose,  and  the  bill  itself  would  be  produced     And  this 
would  be  evidence  not  to  vary,  but  to  co\n-oborate  the  written 
promise.     The  3rd,  7th,  and  17th  sections  of  the  act  all  require 
the  signature  of  the  party  to  some  note  in  writing  in  order  to 
charae  him  with  the  several  subject-matters  of  those  sections 
But  in  all  those  cases  the  party  must  be  charged  on  the  special 
written  agreement;   but  here  he  is  charged  on  tlie  promise,  of 
which  the  writing  is  only  evidence.     Yet  the  4th  section  sup- 

(«)   1  Com.  Dig.  311. 


i:»00  WAIN    V.    WAKLTKKS. 

poses  that  tliu  [MVty  is  to  Ik*  fluii^^fd  upon  the  aijreement,  "unleiui 
the  iii^Mt't'iiu'iit  upmi  which  siuh  urtioii  shall  Ik;  l»rou^'hl,"  iVr.; 
wliicli  shows  that  (i</niinent  as  there  used  means  no  more  thun 
unih'rtiikinii  or  vniiugement.  And  in  this  seiiHe  i\\\  tfjrremttU 
si^'iu'(l  hv  out'  |)artv  only  on  a  sale  hy  auetion  was  holdeii  sulVi- 
eient  to  iliarj^e  him  within  the  Statute  of  Frauds(<i).  (^I^or«l 
£llen/>or<>io/h,  ('.  .1.  There  it  was  dri'innl  .suHieient  proof  t)f 
sueh  a<,'reement  so  as  to  change  the  party  si^Miin^'  it.  lie  wius 
est(»p[)ed  hy  his  signature  fn»m  proteeting  himsidf  under  llic 
statute.  Hut  there  the  consideration  appeared  in  writing.) 
They  tlnii  ol»s(  rved,  that  thiuigh  the  ohjeetion  uwist  have  t)ften 
before  oecurred  in  actions  of  this  sort,  wiiiih  were  in  eoinmon 
priu;tie»',  the  word  tif/ni-nunf  ha<l  never  U-fore  received  sueii  a 
constiiiction  as  appliiahle  to  tins  hran<h  of  the  elausc. 

Lord  I'Jllfu/ioroiii/h,  ('.  .1.,  aftrr  noti«ing  the  dctinition  of  tlie 
word  (iifrffiiuiif  hv  I^ord  ('.  15.  Cunii/iin,  \\\ut  considered  it  as  a 
tliinn"  to  wliii  h  there  must  1h'  the  assent  of  two  or  mor«'  miml.s 
and  which,  as  he  .says,  ought  to  Ih*  so  j-ertain  ain«l  c(unph'le  that 
each  party  may  have  an  action  upon  it;  for  which,  in  addition 
to  the  author's  (►wn  authority,  was  citecl  that  «»f  Ptoinhn  ;  and 
better  (^his  Lordship  okscrved)  couhl  not  l»e  cited: 

In  all  cases  where,  hy  long  habitual  construction,  ihc  word.s 
of  a  statute  have  not  received  a  peculiar  interj»retation,  sucdi  as 
they  will  allow  t>f,  I  am  always  inclined  to  give  to  them  their 
natural  ordinary  signification.  The  ilause  in  (piestion  in  the 
Statute  ot  Frauils  has  the  word  ii<fniinint  ("unless  the  agree- 
mnit  U[)on  w  Inch  tiic  action  is  brought,  or  some  memorandum 
or  note  thereof,  shall  be  in  writing"'  \c.).  And  the  <|uestion  is, 
Whether  that  word  is  to  be  unilerstood  in  the  loo.se  incorrect 
sense  in  which  it  may  sometimes  be  used,  as  synonynn)iis  to 
promise  or  imdertakint/,  or  in  its  more  proper  and  correct  sense, 
as  signifying  a  mutual  contract  or  consideration  l)etween  two 
or  more  parties?  The  latter  appears  to  me  to  be  the  legal  con- 
struction of  the  word,  to  which  we  are  bound  to  give  its  proper 
effect:  the  more  so  when  it  is  considered  by  whom  that  statute 
is  said  to  have  been  drawn,  by  Lord  JJn/t(l>),  one  of  the  great- 
est judges  who  ever  sat  in  Westminster  Hall,  who  wiis  as  com- 

(a)  Seton  v.  Slade,  7  Ves.  jnn.  2t','>.  liaps  tli.iii  by  Lord  Halp's  havinir  left 

(6)  Lord,     Mans^tield    expressed    a  some  loose   notes  heliind  him,  wliirh 

doubt   of  this   in  Wi/ndhain  v.  Chet-  were  afterwards  unskilfully  digested, 

icynd,  1  Burr.  ilS,  any  otherwise  per-  1  lilac.  D'J. 


\yAlN    v.    WAKLTEES.  1501 

petent  to  express  as  he  was  able  to  conceive  the  provisions  best 
calculated  for  carrying  into  effect  the  purposes  of  that  law. 
The  person  to  be  charged  for  the  debt  of  another  is  to  be 
charged,  in  the  form  of  the  proceeding  against  him,  upon  his 
special  promise ;  but  without  a  legal  consideration  to  sustain  it, 
that  promise  would  be  nudum  pactum  as  to  him.  The  statute 
never  meant  to  enforce  any  promise  which  was  before  invalid, 
merely  because  it  was  put  in  writing.  The  obligatoiy  part  is 
indeed  the  promise,  which  will  account  for  the  word  promise 
being  used  in  the  first  part  of  the  clause,  but  still  in  order  to 
charge  the  part}-  making  it  the  statute  proceeds  to  require  that 
tlie  agreement^  by  which  must  be  understood  the  agreement  in 
respect  of  tvhich  the  promise  ivas  made  must  be  reduced  into  writ- 
ing. And  indeed  it  seems  necessary  for  effectuating  the  object 
of  the  statute  that  the  consideration  should  be  set  down  in 
writing  as  well  as  the  promise ;  for  otherwise  the  consideration 
might  be  illegal,  or  the  promise  might  have  been  made  upon  a 
condition  precedent,  which  the  party  charged  may  not  after- 
wards be  able  to  prove,  the  omission  of  which  would  materially 
vary  the  promise,  by  turning  that  into  an  absolute  promise  which 
was  only  a  conditional  one :  and  then  it  would  rest  altogether 
on  the  conscience  of  the  witness  to  assign  another  consideration 
in  the  one  case,  or  to  ch'op  the  condition  in  the  other,  and  thus 
to  introduce  the  very  frauds  and  perjuries  which  it  was  the 
object  of  the  act  to  exclude,  by  requiring  that  the  agreement 
should  be  reduced  into  writing,  by  which  the  consideration  as 
well  as  the  promise  would  be  rendered  certain.  Tlie  authorities 
referred  to  by  Comyns,  Plowd.  5  a.  6  a.  9,  to  which  may  be 
added  Dyer,  38«j.  b.,  all  show  that  the  word  agreement  is  not 
satistied  unless  there  be  a  consideration,  which  consideration 
forming  part  of  the  agreement  ought  therefore  to  have  been 
shown;  and  the  promise  is  not  binding  by  the  statute  unless 
the  consideration  which  forms  part  of  the  agreement  be  also 
stated  in  writing.  Without  this,  we  shall  leave  the  witness 
whose  memory  or  conscience  is  to  be  refreshed  to  supply  a  con- 
sideration more  easy  of  proof,  or  more  capable  of  sustaining  the 
])romise  declared  on.  Finding  therefore  the  word  agreement  in 
the  statute,  which  appears  to  be  the  most  apt  and  proper  to 
express  that  which  the  policy  of  the  law  seems  to  require,  and 
finding  no  case  in  which  the  proper  meaning  of  it  has  been 


1502  WAIN    V.    WAItLTElCS, 

relaxed,  the  best  construction  which  we  can  make  of  the  chmne 
is  to  give  its  proper  and  Iv^id  nu'anin<j  to  every  word  «)f  it. 

Grose,  .1. —  It  is  siiid  that  thf  parol  fvi<l«'iici'  t«Midt'rfd  <loeH 
not  contradict  tht'  ai^reeinent ;  l»ui  the  <(uestiitii  is,  whether  the 
statute  does  n<»t  ie([uiie  that  tin-  fousiiU'iation  for  the  pronuse 
should  be  in  writinj^  as  well  as  tlie  piKinise  itself/  Now  the 
words  of  the  statute  are,  *•  that  no  aetion  sliall  Ix*  brought  where- 
by to  charge  the  defenchmt  upon  any  special  promise  to  answer 
for  the  debt,  \.c.,  of  another  pei-son,  Arc,  unless  th«'  (VirtrmtiU 
U[)on  which  such  action  shall  be  brought,  oi*  some  nienioraiKhim 
or  note  thereof,  shall  be  in  writing,"  «S:e.  What  is  recpiired  to  Im 
in  writing,  therefore,  is  the  (t</nfmcnt  (not  the  pr«)njise,  sis  int-n- 
tioiied  in  the  tiist  part  of  the  clause  ),  or  some  W"^•  or  mfinortindum 
of  the  a(/reemenf.  Now  the  (V/reemt'uf  is  that  which  is  to  show 
what  each  purf//  is  to  do  or  perform,  and  bv  which  />oth  partirn 
are  to  l)c  bound;  and  thin  is  re«|uired  to  Ijc  in  wrifini/.  If  it 
were  oidy  necessary  to  sh(»w  what  one  of  them  wiis  to  do,  it 
would  be  sutlicient  to  state  tlie  promise  made  by  the  defendant 
who  w;is  to  be  charged  upon  it.  liut  if  we  were  to  a<lopt  this 
construction,  it  would  Ix'  the  means  of  letting  in  those  very 
frauds  and  perjuries  wliidi  it  was  the  object  of  tlie  stJitnte  to 
prevent.  Vo\\  without  the  jtarol  evidence,  the  dt^fiMidant 
cannot  be  charged  upon  the  writt«'n  contract  for  want  of  a 
consideration  in  law  to  sujiport  it.  I'lie  ctTeet  of  the  paiol 
evidence  then  is  to  make  him  liable:  and  thus  he  woidd  Ihj 
charged  with  the  debt  of  another  by  parol  testimony,  when 
the  statute  was  passed  with  the  very  intent  of  avoiding  such 
a  charge,  by  requiring  that  the  at/reemenf,  by  which  nuist  Ihj 
understood  the  whole  ai/reement,  shoidd  be  in  writing. 

Lawrence,  J. —  From  the  loose  manner  in  which  the  clause 
is  worded,  I  at  first  entertained  some  donbt  u{)on  the  i|Ucstioii ; 
but  upon  further  consideration  I  agree  with  my  Lord  and  my 
brothers  upon  their  construction  of  it.  If  the  (piestion  had 
arisen  merely  on  the  first  j)art  of  the  clause,  I  conceive  that  it 
would  only  have  been  necessary  that  the  promisr  should  have 
been  stated  in  writing ;  but  it  goes  on  to  direct  that  no  person 
shall  be  charged  on  such  promise,  unless  the  agreement  or  some 
note  or  memorandum  thereof,  that  is,  of  the  ar/reement,  be  in 
writing;  which  shows  that  the  word  aijreement  was  meant  to 
be  used  in  a  sense  different  from  promise,  and  that  something 
besides  the  mere  promise  was  required  to  be  stated.     And  as 


WAIN   V.    WARLTERS.  1503 

the  consideration  for  the  promise   is  part  of  the   agreement, 
that  ought  also  to  be  stated  in  writing. 

Le  Blanc,  J.  —  If  tliere  be  a  distinction  between  agreement 
and  promise,  I  think  Ave  must  take  it  that  agreement  includes 
the  consideration  for  the  promise  as  well  as  the  promise  itself  : 
and  I  think  it  is  the  safer  method  to  adopt  the  strict  construc- 
tion of  the  words  in  this  case,  because  it  is  better  calculated 
to  effectuate  the  intention  of  the  act,  which  was  to  prevent 
frauds  and  perjuries  by  requiring  written  evidence  of  what 
the  parties  meant  to  be  bound  by.  I  should  have  been  as  well 
satisfied,  however,  if,  recurring  to  the  words  used  in  the  first 
part  of  the  clause,  they  had  used  the  same  words  again  in  the 
latter  part,  and  said,  "unless  the  promise  or  agreement  upon 
which  the  action  is  brought,  or  some  note  or  memorandum 
thereof,  shall  be  in  writing."  But  not  having  so  done,  I  think 
we  must  adhere  to  the  strict  interpretation  of  the  word  agree- 
ment, which  means  the  consideration  for  which  as  well  as  the 

jpromise  by  which  the  party  binds  himself. 

Rule  discharged. 


The  main  point  involved  in  this  case  has  been  already  discussed  in  the 
note  to  Birkmyr  v.  Darnell,  ante,  vol.  i.  The  case  of  Wain  v.  Warlters  is, 
however,  one  of  so  much  celebrity,  that  it  would  have  been  improper  to  omit 
It  in  a  selection  of  leading  cases;  it  was  couflrmed,  as  is  there  stated,  by 
Saunders  v.  Wakefield,  4  B.  &  A.  596;  and  [was  afterwards]  acted  on  in 
numerous  cases. 

[It  has  been  mentioned,  ante,  vol.  1.,  that  the  Mercantile  Law  Amendment 
Act,  1856  (19  &  20  Vict.  c.  97),  provides,  by  s.  3,  that  no  special  promise  to 
be  made  by  any  person  after  the  passing  of  that  act  (29th  July,  1856)  to  an- 
swer for  the  debt,  default,  or  miscarriage  of  another  person,  being  in  writ- 
ing, and  signed  by  the  party  to  be  charged  therewith,  or  some  other  person 
by  him  thereunto  lawfully  authorised,  shall  be  deemed  invalid  to  support  an 
action,  suit,  or  other  proceeding  to  charge  the  person  by  whom  such  promise 
shall  have  been  made,  by  reason  only  that  the  consideration  for  such  promise 
does  not  appear  in  writing,  or  by  necessary  inference  from  a  icritten  document. 
The  rule  laid  down  in  Wain  v.  Warlters  (a  rule  which  some  have  thought  to 
be  hardly  consistent  with  the  natui'al  interpretation  of  the  words  of  the  4th 
section  of  the  Statute  of  Frauds,  which  only  required  that  there  should  be 
some  "  memorandum  or  note"  in  writing  of  the  agreement  of  guarantee)  was 
altered  by  the  legislature,  because  it  was  found,  in  practice,  that  it  led  to 
many  unjust  and  merely  technical  defences  to  actions  upon  guarantees. 

The  note  to  this  case  deals  with  the  questions  arising  upon  that  portion  of 
the  4:th  section  which  provides  that  a  guarantee  shall  be  signed  by  or  on  be- 
half of  the  party  to  be  charged;  and  as  this  provision  is  still  in  force,  the  note 
is  retained  in  this  edition.] 


ir>04  WAIN    v.    WAKLTKKS. 

It  will  b«'  rfcollccnil  tliiit,  lucnriliriy  to  tlif  stutiit«',  tin-  a;;ri>fiiifiit.  or  Hoiiif 
iiM'iiinnuHluin  or  iiotf  tlnTeof.  Is  to  !»»•  In  wrltliii;.  niijnfd  Ay  thr  ^Htrl<j  to  hr 
ckiirtjnl  thertwith,  ur  sinw  i>thfr  pfmon  therrunto  t»j  him  lutrfulty  nuthnritrd. 
On  thest'  \vt)rils  It  Ims  sometlint's  be»-n  made  question,  what  ran  Ik*  ileeimtl 
a  siittlcicut  sli^nutiirc  to  nu-t-t  tlirse  uonls.  It  Is  <-U-ar  that  tlie  Hlj;nntiin- 
neud  not  be  placed  in  any  particular  part  of  the  Instrument  or  memorandum 
See  Saundersnn  v.  Jnck»nn.  2  H.  &  1'.  2:»M ;  Schnridtr  v.  Snrri*.  2  M.  A  S.  2f*<i : 
Kuiijht  V.  Crorkfi»rd,  1  Ksp.  11)0;  which  are  decisions  on  the  corres)M>mliui; 
wfu'ils  in  the  17th  section. 

[In  DurMl  v.  Kmns,  1  II.  &  C.  174.  in  Cam.  S«acc.  (reverslnj;  the  deelsloii 
in  the  court  below,  t;  II.  v<:  X.  •;«;o),  tin-  name  of  tin-  person  to  l>e  charKetl  ^lh^• 
buyer)  was  written  at  the  top  of  a  note  of  tin-  <ontract  by  a  fa«"t<>r  who  con- 
ducted the  sale.  The  court  was  of  opinion  that  there  was  evidence  for  tin- 
jury  that  the  factor  was  the  a^rent  of  both  parties  f«)r  the  purpose  of  dra\\  in;; 
up  a  record  of  the  contract  biudini;  on  them,  and  that  If  he  was,  the  wrlttni; 
of  the  name  of  the  buyer  at  the  head  of  the  memornndiim  was  a  sultlclent 
HlRnature  within  the  17tli  sect.  ••Noakes"  (the  factor),  snlil  Mr.  Justice 
Crompton,  "  drew  out  a  note  of  the  contract  with  the  nameN  of  lM>th  buyer 
and  seller  upon  it,  but  It  coutaluetl  notldnt;  which  coulil  onllnarlly  Im-  calUnl 
a  signature,  for  the  tlefentlant's  (the  buyer's)  name  was  written  at  tlie  liead 
of  the  document;  and  if  this  had  bcrn  the  first  casi-  on  the  subject  I  ^hoidtl 
have  doubtcil  wht>ther  the  placing  a  name  at  the  top  of  a  docinuent  could 
fairly  be  callrd  a  >ii.'n»ture,  but  that  Is  now  past  discussion,  for  tlie  ca.ses 
have  decided  that  it  does  not  slt;ulfy  where  the  name  Is  place<l.  If  It  is  put 
there  by  the  party  sought  to  be  char;;etl  or  some  penton  deputcti  by  him.  It 
may  be  at  the  head,  the  ndtlille,  at  the  end,  or  in  any  part  of  the  ilf>cu- 
ment."  See  also  Simmnnds  v.  Ilumhle,  l.'l  C.  B.  N.  S.  2.'>H.  It  must,  hi»wever, 
be  so  introduced  as  to  govern  or  authenticate  every  material  and  tiperatlve 
part  of  the  instrument.  For  a  ciusf  where  the  name  of  the  party  to  Iw 
char;xcd  was  iiitrndu<ed  in  different  parts  of  the  paper,  but  so  a.H  to  relate 
only  to  those  i)artlcular  parts,  not  to  jjovcrn  the  whole  contract,  see  Cutnn  v. 
CnUni,  L.  U.  2  II.  L.  127.] 

\\\  .lohnson  V.  Dtidijunu,  2  M.  &  W.  •>">;$.  the  following  note,  written  by  the 
defendant,  was  held  sutllcicntly  signed  to  satisfy  the  17th  .section  of  the 
statute  :  — 

"Lffdf,  19  October,  lf<36. 

"  Sold  John  Dodijunn  (the  defendant)  27  pockets  Playated,  1836,  Siumejr,  at 
103s.     The  hulk  ti>  ansirer  the  sample. 

"  i  pockets  SelDie,  lierklei/s,  at  OUa.  Samples  and  invoice  to  be  sent  by  Rock- 
ingham coach.     Paipnent  in  /{'inkers  at  2  months. 

••  Signed  for  Johnson  Johnson  <£  Co.  (the  plaintiffs). 

•  D.  }/»r!>^" 

"The  Statute  of  Frauds,"  said  Lord  Abinfjcr,  C.  B.,  •  refpiires  that  there 
should  be  a  note  or  memorandum  of  the  contract  in  writiiii;  signed  lnj  the 
party  to  be  charged.  And  the  cases  have  decided  that,  altIioui;h  the  si>;iuiture 
be  in  the  beijinnins;  or  middle  of  the  instrument,  it  is  as  bindiuir  as  if  at  the 
foot  of  it,  the  ijui'titiun  being  ahcays  open  to  the  jury  whether  the  party,  not  hav- 
ing .^ig}ied  it  regularly  at  the  foot,  meant  to  be  bound  by  it  as  it  then  stood,  or 
rchether  he  left  it  so  unsigned  because  he  refused  to  complete  it." 

[In  Sari  v.  Bourdillon,  I  C.  B.  N.  S.  188,  the  sellers  of  goods  entered  a  list 


WAIN   V.    WAELTERS.  1505 

of  the  goods  which  had  been  purchased  in  an  order  book,  on  the  fly-leaf  at 
the  beginning  of  which  the  names  of  the  sellers  were  written;  the  buyer 
wrote  his  name  and  address  in  this  book,  at  the  foot  of  the  entry  which  re- 
ferred to  the  goods.  It  was  held,  that  under  these  circumstances  there  was 
a  sufficient  signature  of  the  contract  by  the  party  to  be  charged,  and  that  the 
names  of  the  sellers  appeared  on  it  sufficiently  to  satisfy  the  Statute  of 
Frauds.] 

But  it  would  seem  from  the  case  of  Hubert  v.  Treherne,  3  M.  &  G.  755,  that, 
if  it  appear  upon  the  face  of  the  instrument  itself  that  the  parties  contemplated 
a  further  signature  in  order  to  complete  it,  the  insufficiency  of  the  signature 
is  matter  of  law ;  thus  an  agreement  containing  the  names  of  the  parties, 
and  concluding  with  the  words  "as  witness  our  hands"  without  any  other 
signature,  was  held  not  to  be  sufflcientlj"^  signed  within  the  4tli  section  of 
the  statute,  and  Mr.  Justice  Maule  observes  —  '•  In  cases  of  this  description 
two  questions  may  occur :  first,  whether  the  agreement  contains  that  which 
the  Statute  of  Frauds  requires,  which  is  a  question  of  law;  secondly, 
whether  the  agreement  has  been  signed  by  the  party  to  be  charged  therewith, 
or  by  a  person  authorized  by  such  party  so  to  do,  which  is  a  question  of  fact. 

1  think  this  rule  (to  enter  a  nonsuit)  should  be  made  absolute  on  the  first 
point." 

[Where  alterations  made  in  a  written  memorandum  after  it  had  been  signed 
by  the  defendant  were  subsequently  assented  to  by  him,  the  contract  was  held 
binding,  and  parol  evidence  was  admitted  to  show  that  he  had  assented  to  the 
alterations,  Stewart  v.  Eddowes,  L.  R.  9  C  V.  311;  Sanderson  v.  Graves,  L.  R. 
10  Ex.  234;  Leather  Cloth  Co.  v.  Hieronimus,  L.  R.  10  Q.  B.  140;  Stevens  v. 
Bowserj,  1  C.  P.  D.  220.] 

In  Coles  V.  Trecothick,  9  Ves.  951,  Lord  Eldon  said  that  "  where  a  party  prin- 
cipal, or  person  to  be  bound,  signs  as  what  he  cannot  be,  a  witness,  he  cannot 
be  understood  to  sign  otherwise  than  as  principal."     But  in  Gosbell  v.  Archer, 

2  A.  &  E.  500,  where  the  purchaser  affixed  his  signature  to  an  agreement  for 
the  sale  of  land,  and  underneath  was  written,  "  Witness,  Joseph  Nevnnan," 
in  the  usual  place  for  a  witness's  signature,  Joseph  Newman  being  the  clerk 
of  the  auctioneer  employed  to  sell  the  premises,  it  was  urged  that  Xewman 
must  be  taken  to  have  signed  as  agent  for  the  vendor,  and  it  was  attempted 
to  show  a  ratification  of  his  agency.  But  the  court  was  of  opinion,  that  he 
signed  simply  as  a  witness;  and  Lord  Denman,  C.  J.,  said  that  "  he  thought 
the  above  remark  of  Lord  Eldon  open  to  much  observation ;  that  no  such 
decision  had  been  actually  made;  and  that,  if  it  had,  he  should  pause,  unless 
he  found  it  sanctioned  by  the  vei'y  highest  authority,  before  he  held  that  a 
party  attesting  was  bound  by  the  instrument."  And  see  the  judgment  of 
Baron  Tarke  in  Doe  d.  Spilshury  v.  Burdett,  9  A.  &  E.  971;  S.  C.  in  Dom. 
Proc.  6  M.  &  Gr.  386.  See,  however,  the  observations  of  Sir  Edward  Sugden 
upon  the  judgment  of  Lord  Denman  in  this  case,  in  which  he  vindicates  the 
remarks  made  by  Lord  Eldon  in  Coles  v.  Trecothick,  1  Vend,  and  P.,  14th 
edition,  143. 

[Although  it  has  been  settled  ever  since  the  case  of  Simon  v.  Metivier,  1 
Bl.  599,  that  the  auctioneer  is  the  agent  of  both  the  buyer  and  seller,  and  that 
a  memorandum  made  by  him  of  the  bargain  is  a  sufficient  compliance  with 
the  terms  of  the  statute  (see  Beer  v.  London  and  Paris  Hotel  Co.,  L.  R.  20 
Eq.  412),  the  agency  of  the  auctioneer  exists  only  at  the  time  of  the  sale,  and 
he  cannot,  at  a  subsequent  day,  bind  the  parties  by  his  signature :  Mews  v. 
Carr,  1  H.  &  N.  484.     On  a  sale  of  land  subject  to  conditions,  the  entry  in 


150G  WAIN    V.    WAULTKKH. 

tin-  auctioneer's  book  must  refer  to  the  rondltlonM  of  sale  »o  t»  to  Ulrntlfy 
them,  Jiishton  v.  W'hntmorf.  M  Cli.  D.  4«;7.  A.i  to  n  fil^imtun*  by  an  aurtlou- 
eer's  clerk,  ^ee  yvmv  v.  Corf,  I..  K  "J  l^.  B.  210.  Miie  of  ih»?  partle*  to  lhi» 
contract  cannot  siyn  the  name  of  the  other,  sti  as  to  bhul  him:  .VAurmun  v. 
IlrniuU,  L.  K.  t>  (^.  I{.  7l'<». 

In  Mnrphij  v.  JlneHf.  I..  I{.  10  Kx.  l-'tJ,  the  plalntltTf*  traveller,  on  takiti^  an 
order  from  the  tiefemlant.  w  rote  down  in  his  pn-^ence  the  ilefenilant'<«  name, 
and  the  description  and  price  of  the  i;<mm1s  in  a  partly  printe«l  fonn,  and  i;ave 
the  defemlant  a  copy  of  what  he  had  written,  the  court  lUstlnifuUhln:;  Iturrrll 
V.  Kvans,  ftup.,  held  that  there  was  no  evidence  of  .signature  by  an  ai;«Mit 
within  the  statute.  .\  si-^netl  entry  In  a  broker's  book  may  Im-  .tutTlclent  to 
l)in(l  i)oth  parties:    Thotnpunn  v.  (innlnfr,  1  ('.  1*.  I>.  77H. 

In  Sinilh  V.  Wihstt-r,  '.\  Ch.  1).  41),  the  following  l.'tter  sii;ned  by  the  dc- 
fendiiiifs  Holicitnr,  and  adtlressfd  to  the  plalntltrs  .solicitor,  was  h«dd  not  to 
be  sutlliieiit  to  Itind  the  defendant:  "  W.  (the  defentlaut)  has  ln-en  with  us 
to-day  and  stated  that  In-  had  arranm-<l  with  your  client  for  tlie  hale  t<»  the 
latter  of  the  (lolden  I. Ion  for  !».'iO/.  We  therefore  .send  herewith  tlrafl  con- 
tract for  your  perusal  and  appro\al."  The  signature  by  tiie  chalnuan  of  a 
company  to  the  minute  iHtok  nniy  Ik-  .sulllctent  to  bind  the  company  within 
the  Statute  of  Frautls,  .li>ui»  v.   Virtnrin  (ir>triii,i  f)<,>k,  'j  i^.  \\.  D  ;n4  ] 

Whether  the  initinls  of  the  party  to  \h>  chari;e«l  are  a  suHlclent  .sitrnatnre 
wltliin  this  statute  seems  clear,  although  not  very  clearly  ilecUleil.  It  [was] 
stiiti'il  iu  .Mr.  Uoscoe's  work  upon  Kvidence,  i:th  edition,  p.  'J<'>.'>,  that  a  Mli;na- 
ture  by  initials  is  nnl  sullleient  within  the  meanlni;  of  the  statute,  ami  Jamh 
V.  Kirk.  '1  M.  &  Rob.  'i'.M,  and  Sir,,-t  v.  Lr, ,  W  M  &.  i',  4.M»,  [w«Te]  cltisl  as 
authorities  fnr  that  position,  whilst  Sir  Kdwanl  Sujjden  cites  those  two 
cases  in  support  of  the  statement,  that  *•  It  Is  sunh-lent.  It  seems.  If  the  Ini- 
tials (»f  the  name  are  set  down;"  I  Vend.  &  V.,  14th  e«lltlon,  144  :  the  cases 
themselves  <lo  not  appear  to  decide  very  distinctly  either  way.  A  murk-, 
however,  seems  clearly  to  be  a  sullleient  sii;miture  within  the  statute,  and 
the  Court  of  (Queen's  Heiuh  decided,  on  the  '>th  and  'Jth  seclli>ns  «>f  the  stat- 
ute, that  no  ini|uiry  on>.'ht  to  Ix-  allowed  as  to  whi-thi-r  the  party  maklntr  the 
niiirk  could  write:  linkfr  v.  Dfitiiuj,  s  .\.  a  K.  1)4;  antl  If.  as  was  In  elfect 
decided  in  that  case,  a  mark  made  by  a  person  who  can  write  be  a  sullleient 
siiinature,  it  appears  stranije  that  It  should  rease  to  be  so  when  the  mark 
assumes  the  shape  of  the  maker's  Initials.  [It  has  now  been  deelde<l.  upon 
the  above  rcasonlnsr,  that  a  signature  by  Initials  Is  a  sullleient  signature  under 
the  Wills  Act:  In  the  ijmnh  of  lilfwiu,  'i  V.  1).  11.'.;  41»  L.  J.  1*.  I).  :»!.]  See 
also  the  cases  cited  in  Trottrr,  app.,  r.  ]\'iil.':>  r,  resp.,  i:i  C.  R.  X.  S.  30;  .'12  I>. 
J.  C.  P.  00;  where  a  notice  of  objection  to  the  name  of  a  voter  was  held  to 
be  snflicient,  althoii<;h  the  siiriiaun'  of  the  objector  (bein«r  his  usual  mode  of 
sisninjr)  was  wholly  illeirihle.  so  that  an  ordinary  person  unaciiuainted  with 
the  sii^nature  couUl  not,  by  perusing  it  with  ordinary  skill  and  diligence,  llud 
out  what  name  it  was  intended  to  designate.  In  Bmnett  v.  Brumjit,  L.  K.  3 
C.  P.  28,  a  notice  impi'cssed  with  a  stamped /ac-.sj»jj7<»  of  the  objector's  sijna- 
ture  was  held  to  be  sufficiently  signed,  but  see  In  the  gonrUof  Jenkiim*,  infra. 

The  Wills  Act,  I  Vict.  c.  26,  s.  9,  requires  that  two  witnesses  "  shall  attest 
and  shall  subscribe  the  will  in  the  presence  of  the  testator."  In  the  case  of 
Harrison  v.  Elwin,  3  Q.  B.  117,  the  name  of  one  witness,  who  could  not 
write,  was  traced  by  the  other  witness  holdincc  his  hand,  and  £ruidin;r  the  pen. 
It  was  contended  that,  assnmini;  a  mark  to  be  sufficient,  this  was  not  even 
the  mark  of  the  witness,  but  the  court  held  that  it  was  the  sifin<rtnrr  of  the 


WAIN   V.    WARLTERS. 


150T 


Witness  and  a  sufficient  attestation;  and  in  Helsliaw  v.  Langley,  11  L.  J.  Chan. 
17  an  agreement  was  lield  to  be  sufficiently  signed  wliere  the  agent  who 
made  the' agreement  (not  being  able  to  write)  held  the  top  of  the  pen  whilst 
another  person  wrote  his  name;  see,  however,  Hiihert  v.  Moreau,  2  C.  &  P. 
528   per  Best,  C.  J.,  but  see  also  S.  C.  in  Banc.  12  B.  Moore  216. 

[A  mark  at  the  foot  of  the  will  with  a  wrong  Christian  name  written 
against  it,  the  testator  being  also  described  by  the  wrong  Christian  name  in 
the  will  itself,  has  been  held  to  be  sufficient  under  the  Wills  Act,  the  court 
bein''  satisfied  that  the  mark  was  that  of  the  testator,  and  that  it  was  made 
animo  testandl.  In  the  goods  of  Thomas  Douse,  31  Law  J.  Prob.  172.  But  the 
court  refused  to  grant  probate,  on  motion,  to  a  codicil  at  the  foot  of  which 
the  name  of  the  testator  had  been  impressed  by  a  third  person,  by  means  of 
a  stamp,  at  the  testator's  express  direction.     In  the  goods  of  Jenkyns,  32  L.  J. 

Prob.  71.] 

A  letter  from  defendant  commencing  —  "  Mr.  Stanley  begs  to  inform  Messrs. 
Lobh  and  Co.,"  &c.,  without  any  other  signature,  has  been  considered  suffi- 
cient within  6  Geo.  4,  c.  16,  s.  131,  to  revive  a  claim  barred  by  a  bankrupt's 
certificate:  Lohh  v.  Stanley,  5  Q.  B.  574;  and  an  agreement  written  by  a 
defendant,  commencing —  "  Mr.  Wilmot  Parker  has  agreed,"  &c.,  satisfies 
the  4th  section  of  the  Statute  of  Frauds  as  a  signature  by  Wibnot  Parker: 
Propert  v.  Parker,  1  Rus.  &  Myl.  625  (notwithstanding  the  doubt  in  Morrison 
V.  Tumour,  18  Ves.  175).  "  The  object  of  all  the  statutes,"  says  Mr.  Justice 
Patteson,  in  Lohh  v.  Stanley,  "  is  merely  to  authenticate  the  genuineness  of  the 
document,"  and  perhaps  the  result  of  the  cases  may  be,  that  the  name  of  the 
party  to  be  charged,  or  any  mark  written  or  made  by  him,  or  by  his  direction, 
upon  a  document  in  other  respects  sufficient,  for  the  purpose  of  authenti- 
cating its  genuineness,  may  be  a  sufficient  signature  within  the  Statute  of 
Frauds.  [See  also  Durrell  v.  Evans,  cited  supra,  p.  278 ;  and  Tourret  v.  Cripps, 
48  L.  J.  Ch.  567,  where  a  letter  containing  the  sender's  name,  printed  at  the 
top,  but  not  signed  in  writing,  was  held  sufficient  to  bind  him.] 

It  is  not  necessary,  when  an  agent  signs,  that  he  should  sign  the  name  of 
his  principal;  if  he  signs  in  his  own  name,  parol  evidence  is  admissible 
to  show  the  agency,  and  charge  the  principal  on  the  contract;  see  the  notes 
to  Thompson  v.  Davenport,  post;  and  in  the  Prerogative  Court  it  has  been 
held  that  another  person  by  direction  of  a  testator  signing  his  own  name 
instead  of  the  testators  at  the  foot  of  a  will,  was  a  sufficient  compliance 
with  the  9th  section,  1  Vict.  c.  26,  which  requires  that  the  will  "  shall  be 
si-ned  at  the  foot  or  end  thereof  by  the  testator,  or  by  some  other  person 
in" his  presence,  and  by  his  direction."  "  The  act,"  said  Sir  H.  Jenner  Fust, 
"  allows  the  will  to  be  signed  by  another  person  for  the  testator;  here  this 
gentleman,  by  the  testator's  request,  signed  the  will  for  him,  not  in  the 
testator's  name,  but  using  his  own  name.  The  act  does  not  say  that  the  testa- 
tor's name  must  be  used :  I  think  this  is  sufficient  under  the  act."  In  the 
goods  of  Clarke,  Prerog.  20th  February,  1839,  cited  1  Williams  on  Executors, 
8th  edition,  p.  84;  qucere. 

[In  a  modern  case  in  the  Probate  Court  (Trottr.  Trott,  29  L.  J.  Prob.  Cases, 
156),  the  holograph  will  of  Joseph  Skidmore  began  with  the  words,  "I, 
Joseph  Skidmore,"  and  ended  as  follows,  "all  of  which  to  be  paid  .  .  .  and 
a  receipt,  to  be  provided  by  the  receiver,  from  all  further  claim  upon  the 
estate  of  their  departed  brother  Joseph  Skidmore."  The  words  "Joseph 
Skidmore"  were  written  on  the  same  line  with  the  preceding  words,  without 
any  interval  between  them  and  the  word  "  brother."    The  will  was  not  other- 


1608  WAIN     V.     WAUl/IKUS. 

wlso  signed,  and  underneath  the  last  wonls  appeared  tli.  iii.mt -.  ..i  t«i. 
witnesses.  'I'lie  court  uraiitt'd  probate  of  the  will,  hoUiiiig  tliut.  from  tin- 
mode  in  whieh  tiie  donimcut  was  framed,  tlie  testator  must  have  intended 
the  words  "  .losepli  Skidmore"  at  tiie  emi  of  tiie  will  to  l)e  Ids  signature. 

It  is  not  a  siillieient  sijjiiature  i>y  a  witness  imiler  the  Wills  Art  that  one  of 
tlie  witnesses  sliould  aclinowledixe  his  pn-x  ionsly  written  >i'^iiatnre  In  the 
presence  of  the  other,  even  altiionfjh  he,  at  the  same  time,  e<»rreel.s  an  error 
in  it,  and  adds  the  date:  J/imlnnir.ih  v.  Chnrltnn,  H  11.  of  L.  Ca-ses,  liU). 

Two  points  of  much  general  importance  with  reference  t«)  eoniractn  w  itidn 
tlie  operation  of  tlie  Statutt"  of  Frauds  must  !»«•  here  shortly  mentioned. 

First,  althi>ugh  a  document  may  be  sunieieutly  >i//i(»(/  within  the  meaning 
of  the  statute,  the  dcMMiment  itself  will  not  be  snllleient,  either  Uiuler  the  4lh 
or  the  17th  section,  unl«'>s  both  the  contracting  parties  appear  on  it.  either  by 
name  or  ity  snllleient  «lescription.  A  guarantee  consetpieiitly  which  do«-s  not 
contain  the  name  of  tlie  person  to  whom  it  is  intended  to  Ih-  given,  cannot  be 
enforced,  although  duly  signed  by  the  party  to  be  charged  :  Wilti'ttiig  v.  /.akr, 
2  E.  &  E.  34'J;  .SVi/*-  v.  I.amhnt.  L.  U.  1«  E.|.  1  ;  I'otOr  v.  Dufflrld.  L.  I{.  IH  K«| 
4;  see  also  Champion  v.  Phnnmer,  1  New  U.  2.'»2 ;  Cnmmina  v.  Srittt,  L.  It.  2o 
E(|.  II;  riwmfts  v.  linnrn,  1  Q.  B.  I).  714;  llnnsili-r^w  Millrr,  6  Ch.  I).  «4>*. 
;{  .Vpp.  Ca.  1 ILM  ;  C'lt/hnj  v.  Kiiiij,  5  Ch.  I).  r.C.O ;  ]\illiiiiin>  v.  Jortliin,  C  Ch.  1). 
r»17,  and    Vnndi  iihi-njfi  v.  Spnnner,  L.  U.  1  Exch.  'MC. 

Ill  that  case,  Sptiinitr  was  the  buyer  and  Vitinl>n>>i nih  tin*  seller,  and  the 
docnineut  relied  upon  to  take  the  ca.se  out  of  the  statute  was  in  this  form  : 
"  D.  SjMjiiHcr  ayrfts  to  huy  tho  trhole  of  thf  lot»  of  marhlr  purrha»rd  Inj  Mi . 
Vdndiithirijh  notn  Ujimj  iit  thi-  I.ijun'  Cohh  ttt  In.  per  foot  (sign«'«l)  /'.  Spoourr." 
it  was  held  that  the  document  was  not  snllleient,  as  the  seller's  name,  ag  nrllrr, 
was  not  mentioned  in  it,  but  occurred  only  as  part  of  the  description  of  the 
gtjods :  sed  qiuvrc,  and  see  Xrirell  v.  liddford,  L.  U.  '.i  C.  P.  .'»2;  .SVir/  v.  liotir- 
dillon,  supra. 

Secondly,  the  written  note  or  memorandum  re(|nired  by  the  17th  section,  if 
properly  signe<l  and  snUlcient  in  other  respects,  need  not  be  addressed  to  tin- 
otlier  contracting  party;  a  letter,  therefore,  written  by  the  person  to  lie 
charged  (the  buyer)  to  his  otrn  (ttjtid,  referring  to  letters  of  the  agent  stating 
the  terms  (»f  the  contract  and  the  name  of  the  seller,  was  held  to  In*  a  sutll- 
cient  note  of  the  contract:  Gibson  v.  Holland,  L.  H.  1  C.  1'.  1.] 


T.  General  nature  of  memorandum.  —  Distinction  bet^v^een  ^^rrit- 
ten  contract  and  memorandum. —  It  the  contract  ill  its  inception 
be  reduced  to  writing,  the  statute  has  no  application.  The 
common4aw  rules  of  evidence  as  to  the  introduction  of  parol 
evidence  for  the  explanation  of  written  instruments  govern 
such  contracts-,  and  the  statute  introduced  no  change  in  this 
respect;  Wiener  v.  Whipple,  53  Wise.  298  (1881)  ;  Sievewright 
V.  Archibald,  17  Q.  B.  103.  But  oral  contracts  are  expressly 
within  the  terms  of  the  statute,  unless  evidenced  by  some  note 
or  memorandum  in  Aviiting.  It  is  plain,  therefore,  that  a  mem- 
orandum within   the    Statute    of  Frauds    presupposes   a   prior 


■     WAIN   V.    WARLTERS.  1509 

oral  contract,  valid  at  the  common  law,  the  enforcement  of 
which  is  barred  by  the  statute.  These  propositions  and  dis- 
tinctions, often  disregarded  by  the  courts  in  the  past,  are  now 
generally  recognized  as  most  important;  Saunderson  v.  Jack- 
son, 2  B.  &  P.  238;  Sievewright  v.  Archibald,  supra;  Parton  v. 
Crofts,  33  L.  J.  C.  P.  189,  per  Erie,  J. ;  Lerned  v.  Wanne- 
macher,  9  Allen  412,  per  Hoar,  J.  See,  also,  Thayer  v.  Luce, 
22  Ohio  St.  62;  Williams  v.  Bacon,  2  Gray  387;  Brown  v. 
Whipple,  58  N.  H.  229 ;  Ullman  v.  Meyer,  10  Abb.  N.  C.  281 
(1882);  May  v.  Ward,  134  Mass.  127  (1883);  Ashcroft  v. 
Butterworth,  136  Mass.  511  (1884) ;  Williams  v.  Robinson,  73 
Me.  186  (1882). 

Memorandum  signed  by  defendant  alone.  —  It  is  generally 
well  settled  law  that  the  prior  verbal  promise  of  the  plaintiff  is 
a  sufficient  consideration  to  enable  him  to  recover  of  the  de- 
fendant who  has  alone  signed  a  memorandum ;  Egerton  v. 
Mathews,  6  East  307 ;  Allen  v.  Bennet,  3  Taunt.  169 ;  Clason 
V.  Bailey,  14  Johns.  484 ;  Penniman  v.  Hartshorn,  13  Mass.  87  ; 
Williams  v.  Robinson,  supra ;  Tripp  v.  Bishop,  56  Penn. 
St.  424 ;  Perkins  v.  Hadsell,  50  111.  217 ;  Old  Colony  R.  R.  v. 
Evans,  6  Gray  25 ;  Shirley  v.  Shirley,  7  Blackf.  (Ind.)  452 ; 
Barston  v.  Gray,  3  Greenl.  (Me.)  409 ;  Douglass  v.  Spears,  2. 
Nott  &  M.  (S.  C.)  Law  207.  And  the  better  law  is  that  the 
same  doctrine  applies  even  in  equity,  in  a  suit  for  the  specific 
performance  of  a  contract  for  the  sale  of  land ;  Slater  v.  Smith, 
117  Mass.  96;  Oliver  v.  Alabama  Life  Ins.  Co.,  82  Ala.  417 
(1886).  But  see  Lawrenson  v.  Butler,  1  Shoales  &  L.  13,  per 
Lord  Redesdale.  In  a  very  recent  Michigan  case,  even  under 
the  "year"  clause  of  the  statute  it  was  held  that  tliere  Avas  no 
mutuality  unless  the  memorandum  was  signed  by  both  parties ; 
Wilkinson  v.  Heavenrick,  58  Mich.  574  (1886).  See  Krohn  v. 
Bantz,  68  Ind.  277;  Stiles  v.  McClelland,  6  Col.  89  (1881), 
acco7'cl. 

"Written  offer  accepted  by  parol.  —  The  law  WOuld  now  seem 
to  be  settled  that  a  written  offer  verbally  accepted  by  the 
offeree  constitutes  a  valid  memorandum  as  against  the  offerer. 
This  was  expressly  so  decided  in  England  in  Reuss  v.  Picksley, 
L.  R.  1  Ex.  342.  There  is  a  dictum  to  the  same  effect  in  San- 
born V.  Flagler,  9  Allen  474  ;  and  see  Justice  v.  Lang,  42  N. 
Y.  493 ;  Western  Union  Telegraph  Co.  v.  R.  R.  Co.  86  111.  246 ; 
Lowl)er  v.  Connit,  36  Wise.  176 ;  Lee  v.  Cherry,  85  Tenn.  707 


lolO  WAIN     V      UAULTKICS. 

(1887).  The  difficulty  with  this  <U»c'triiie  sft'ins  l«>  l>e  that  tl»r 
written  oflVr  ciiniiot  In;  vii-wt'd  in  the  li^ht  of  u  nienturunduni, 
since  there  h;i.s  l)een  no  previous  verUtl  eontnict ;  nor,  in  tlie 
absence  of  all  inutiuilitVi  can  it  Ik*  considered  to  Ixj  the  con- 
tract itself.  See  the  lan^uai^c  of  Uraniwdl,  11.,  in  Watts  r. 
Ainsworth,  'i\  L.  J.  Kx.  448,  and  of  Wilde,  B.  in  the  same  case 
reported  in  1  11.  «&  (\  83.  See,  also,  Munday  r.  Asprey,  18 
("h.  1).  8.'^;').  And  in  two  recent  Massachusetts  decisions  the 
court  has  refused  to  extend  this  principle  t«»  the  case  of  a 
written  authority  to  an  aj^eiit  to  make  an  offer;  flastiuf^  v. 
Wei)er,  142  Ma.ss.  '2'.V2  (188»;):  Doherty  r.  Hill,  144  .M;iss.  4r,r> 
(1887).  ('omi)are  Williams  v.  Byrnes,  8  L.  T.  N.  S.  •;•.».  Hut 
see  Lee  f.  ('herry,  8/)  'IVnn.  707  (1HM7).  uftiihlr,  mntrn. 

Parol  evidence  is  competent  to  show  that  memorandum  differs 
from  verbal  agreement.  — In  furlln*r  illustration  of  the  j^enend 
priucijiie  thill  the  memorandum  presuppos»'s  a  pre-existing 
verbal  agreement,  parol  evidence  may  l)e  introduced  to  show 
that  it  is  insunicient  to  take  the  promise  out  of  the  operation 
of  the  statute  because  it  differs  in  some  essential  feature  from 
tliiil  at^reement.  Such  evi«lence  would  of  course,  on  common- 
law  j)rinciples,  be  inadmissible,  if  the  memorandum  constituted 
a  wiitteii  contract ;  Sievuwrij^ht  r.  ArchiUild,  Hupni :  I'arton 
r.  Crofts,  83  L.  .1.  ('.  1'.  \H\K  per  Krle,  J.;  Archer  r.  Haynes,  ;"> 
Ex.  625;  (iibson  v.  Holland,  L.  IJ.  1  C  V..  fur  Willes,  J.;  Davis 
V.  Shields,  2<)  Wend.  341;  (  oddini^ion  v.  (loddard,  !♦»  (iray 
436,  ^<'/-  Bijj^elow,  V.  .1  ;  Lcrned  v.  Wannemacher,  '.>  .Mien  412; 
(lardner  J'.  Hazilton,  121  Miss.  494;  Williams  i-.  Kobinson,  73 
Me.  186  (1SS2). 

Letter  •written  to  a  third  person  or  in  repudiation  of  the  con- 
tract.—  Moreover,  a  letter  written  to  the  defendant's  own  a^ent, 
or  to  a  third  person,  which  never  comes  to  the  notice  of  the 
plaintiff,  is  held  to  constitute  U  good  memorandum  of  a  pre- 
vious verbal  agreement;  Gibson  v.  Holland,  L.  K.  1  C.  I*.  1; 
Peabody  v.  Speyers,  56  N.  Y.  230 ;  Kleeman  i'.  Collins,  9  Hush 
(Ky.)  460;  Moore  v.  Mountcastle,  61  Mo.  424 ;  Wood  r.  Davis. 
82  III.  311  ;  Moss  v.  Atkinson,  44  Cal.  3.  In  Warfield  v.  Wis- 
consin Cranberry  Co.,  63  la.  312  (1884),  there  seems  to  have 
been  an  erroneous  application  of  this  doctrine.  In  this  case 
the  defendant  undertook,  by  a  letter  written  to  a  third  person, 
to  accept  the  written  offer  of  the  plaintiff.  The  court  held 
that  this  was  a  good  memorandum  under  the  statute.     As  was 


WAIN   V.   WARLTEES.  1511 

pointed  out  in  the  dissenting  opinion  by  Adams,  J.,  it  would 
seem  that  there  was  no  valid  contract  between  the  parties, 
apart  from  the  statute,  since  there  was  no  aggregatio  mentiiim.  It 
was  not  a  question  of  a  sufficient  memorandum,  but  of  a  valid 
written  contract  at  common  law.  Compare  Banks  v.  Harris 
Mfg.  Co.,  20  Fed.  Rep.  667  (1884)  ;  Lincoln  v.  Erie  Preserving 
Co.,  132  Mass.  129  (1882). 

Whether  a  letter  wiitten  by  an  agent  to  his  principal  is  a 
good  memorandum,  quccre.  Gibson  v.  Holland,  supra,  and 
Banks  v.  Harris  Manfg.  Co.,  20  Fed.  Rep.  667  (1884)  seem  to 
hold  that  it  is  not. 

A  letter  written  by  the  defendant  to  the  plaintiff,  admitting" 
its  terms,  but  repudiating  the  contract  upon  some  other  ground 
than  the  Statute  of  Frauds,  is  held  to  be  a  sufhcient  memo- 
randum under  the  statute ;  Bailey  v.  Sweeting,  9  C.  B.  N.  S. 
843 ;  M'Lean  v.  Nicoll,  7  Jur.  N.  S.  999 ;  Buxton  v.  Rust,  L.  R. 
7  Ex.  1,  279 ;  Wilkinson  v.  Evans,  L.  R.  1  C.  P.  407.  In  the 
last  case.  Cooper  v.  Smith,  15  East  103,  Richards  v.  Porter,  6 
B.  &  C.  437,  and  Smith  v.  Surman,  9  B.  &  C.  561,  are  dis- 
tinguished on  the  ground  that  in  these  cases  the  terms  of  the 
verbal  agreement  were  incorrectly  stated  in  the  writing  signed 
by  the  defendant. 

Delivery  of  memorandum  unnecessary.  —  So  if  the  writing 
neve]'  be  delivered  to  any  one,  but  remain  in  the  possession  of 
the  defendant,  such  as  an  entry  in  his  books,  it  is  held  that  the 
requirements  of  the  statute  are  answered ;  Johnson  v.  Dodgson, 
2  M.  &  W.  653 ;  Gibson  v.  Holland,  supra ;  Argus  Co.  v^ 
Albany,  55  N.  Y.  495 ;  Townsend  v.  Hargraves,  118  Mass.  325, 
335,  per  Colt,  J. ;  Tufts  v.  Plymouth  Co.,  14  Allen  407 ;  Jenkina 
V.  Harrison,  66  Ala.  345  (1880)  ;  Drury  v.  Young,  58  Md.  546 
(1882). 

Plaintiff  must  declare  on  verbal  contract.  —  So  the  plaintiff 
must  declare  in  his  pleadings  upon  the  original  verbal  contract ; 
and,  unless  it  be  expressly  alleged  in  his  declaration  that  the 
agreement  sued  on  was  verbal,  there  is  no  legal  cause  for  demur- 
rer ;  but  the  statute  must  be  properly  pleaded  by  the  defendant ; 
Babcock  v.  Bryant,  12  Pick.  133 ;  Quin  v.  Hanford,  1  Hill  82  ; 
Elder  V.  Warfield,  7  Harr.  &  J.  (Md.)  391 ;  Price  v.  Weaver, 
13  Gray  272  ;  Ecker  v.  Bohn,  45  Md.  278 ;  Walker  v,  Richards, 
39  N.  H.  259 ;  Elting  v.  Vanderlyn,  4  Johns.  237 ;  Cranston  v. 
Smith,  6  R.  I.   231 ;    Petrick  v.  Ashcroft,  20  N.  J.  Eq.  198 ; 


1")12  WAIN    \.   w  Ai:i/n:i:s. 

Adiiuis  V.  l*;itri(k,  3<)  \'i.  .'>ltJ  ;  Liiwruncc  v.  Chiwc,  ;>!  Ale.  I'.m;  ; 
I'.ost.tii  r.  Nirliols,  47  111.  ;{'>:5. 

Memorandum  must  be  executed  before  suit  brought.  —  'Ilieif 
are  iiuiny  dicta  in  the  reported  esises  t«»  the  effeet  tliat  tliu  iiifiii- 
oranduni  must  he  exeiutt'(l  U'fore  tlie  e(»mineiueineiil  of  tlie 
artion;  Bill  /•.  IJaiiieiit,  9  M.  W.  3»'.,  p,r  I'arke  H. ;  TisdaU*  r. 
Harris,  'JO  Pick.  1>:  Towiiseiid  r.  Mar^nave.s,  llH  Miis.H.  32o, 
^.V-W),  jx-r  CiM,  .].;  liird  r.  Muiiroe,  ♦'•»»  Mc.  .UT,  per  Peters,  .1. 
Hut  it  is  l)elii'ViMl  that  it  has  never  \hh'U  necessary  t<»  de«'ide  the 
point,  and  it  is  hard  to  sec,  if  the  nienioranduni  is  not  the  cnii- 
tract  itself,  hut  only  evidence  of  it,  why  a  verhal  ai^'reenient  is 
not  saved  from  the  operation  of  tli«'  st;itiit>'  h\  ;i  writim^r  |.\,.- 
euted  at  any  time  Ijcfore  trial. 

II.  Form  of  memorandum.  No  special  form  required.  —  Any 
Hole  or  writiiiL,'  may  U*  a  j^ood  memorandum  un«lir  the  statute, 
liowever  informal,  and  however  awkwar«lly  or  inartitieially  ex- 
pressed, providt  tl  oidy  it  U'  intelliijii»le  without  the  introilue- 
tion  of  j)arol  evid»'nce  to  explain  it  ;  Tindal,  ('.  .1.,  in  Acehal 
V.  Levy,  4  iM.  iV  Scott  220.  See,  al.so.  Watt  r.  ('ranln-rry  Co., 
r;:^  Ia.7:iO  (1S84);  Fry  r.  I'latt,  :i2  Kan.  frj  (18H4);  North  v. 
^Iiiidcl,  78  (Ja.  400  (1H84).  Parol  evi<lence,  however,  is  always 
admissihle  to  e.xplain  technical  expressit)ns  and  tra<h'  .syndMtls; 
Spicer  v.  Cooper,  1  Q.  B.  424;  Sari  v.  Bourdillon,  2»;  L.  .1.  C.  P. 
78;  Salmon  Falls  Mfi,'.  Co.  r.  Godflard,  14  How.  440;  (Jowen 
V.  Klous,  101  Mass.  440;  Drury  v.  Youm;,  r>S  Md.  o40  (1882). 

It  is  no  ohjeclion  to  the  memorandum  that  it  is  written  in  pen- 
oil,  and  a  printed  pa[)er  is  equally  hindinj;  with  a  written  one; 
Saunderson  v.  Jack.son,  2  B.  .S:  P.  28S ;  Pitts  v.  Beckett,  18  M. 
cV  \V.  748:  Merritt  r.  Clason,  12  Johns.  102;  Clas(m  r.  Bailey, 
14Jolms.  484:  McDonel  r.  ChamlxM-s,  1  Strobh.  (S.  C.)  Kq. 
347. 

It  would  seem  that  a  paper  sij^ned  by  the  defendant  will  bind 
him,  although  formally  so  worded  as  to  bind  the  plaintiff  only. 
Such  was  the  case  in  Pennimaii  v.  Hartshorn,  13  Ma.ss.  87,  and 
the  defendant  was  lield  liable  on  the  memorandum.  So  a  bill 
of  parcels,  signed  by  the  seller,  is  held  to  be  a  valid  memoran- 
dum, although  such  bills  are  so  worded  as  to  bind  the  buyer: 
Saunderson  v.  Jackson,  supra;  Hawkins  v.  Chace,  19  Pick. 
502.     See,  also,  Butler  v.  Thompson,  02  U.  S.  412. 

Different  kinds  of  writings  as  memorcinda.  —  Any  kind  of 
■writing,  duly  signed,  and  sufficient  in  other  respects,  will  con- 


WAIN   V.   WARLTERS.  1513 

stitute  a  valid  memorandum.  Thus  a  letter,  Peck  v.  Vande- 
mark,  99  N.  Y.  29  (1885)  ;  Hollis  v.  Burgess,  37  Kans.  487 
1887)  ;  the  return  of  an  officer  upon  a  sale  of  execution,  Reni- 
inton    V.  Linthicum,    14    Pet.   92 ;    Hanson   v.   Barnes,    3    Gill 

6  Johns.  359;  Sanborn  v.  Chamberlin,  101  Mass.  409,  41  (J ; 
a  vote  of  a  corporation,  or  a  city  ordinance,  duly  entered  on 
the  records ;  Tufts  v.  Plymouth  Gold  Mining  Co.,  14  Allen 
407  ;  Johnson  v.  Trinity  Church,  11  Allen  123  ;  Chase  v.  Lowell, 

7  Gray  33 ;  Grimes  v.  Hamilton  County,  37  la.  290 ;  Argus 
Co.  V.  Albany,  55  N.  Y.  495 ;  District  of  Columbia  v.  Johnson, 
1  Mackey  (D.  C.)  51  (1884),  are  valid  memoranda  under  the 
statute.  So  are  telegrams,  if  intelligible  ;  Godwin  v.  Francis, 
L.  R.  5  C.  P.  295  ;  Hazard  v.  Day,  14  Allen  487  ;  Tuvan  v.  Wood, 
36  N.  Y.  307  ;  Duble  v.  Batts,  38  Tex.  312;  Whaley  v.  Hinch- 
man,  22  Mo.  App.  483  (1886).  So  a  receipt  of  part  payment, 
or  a  bond  for  title,  given  by  the  vendor  of  real  estate,  if  it 
contain  all  the  stipulations  of  the  contract  and  a  sufficient 
description  of  the  subject-matter,  is  a  good  memorandvun  of 
a  contract  for  the  sale  of  land ;  Barry  v.  Coombe,  1  Pet.  640 ; 
Williams  v.  Morris,  95  U.  S.  444 ;  Smith  v.  Freeman,  75  Ala. 
285  (1885)  ;  Thornbury  v.  Masten,  88  N.  C.  293  (1883) ;  Ellis 
V.  Bray,  79  Mo.  227  (1883)  ;  Humbert  v.  Brisbane,  25  S.  C.  506 
(1886);  Wright  v.  Mischo,  52  Super.  Ct.  (N.  Y.)  241  (1885). 
So  a  defective  deed  of  conveyance  is  a  good  memorandum ; 
Reeves  v.  Pye,  1  Cranch  (C.  C.)  219 ;  Argenbright  v.  Campbell, 
3  H.  &  M.  (Va.)  144 ;  Henry  v.  Root,  33  N.  Y.  526 ;  Welsh  v. 
Coley,  82  Ala.  363  (1886).  So  it  has  been  held  that  a  deed  of 
conveyance,  drawn  up  and  executed  with  the  knowledge  of 
both  parties,  with  a  view  to  the  consummation  of  the  contract 
of  sale,  constitutes  a  valid  memorandum,  though  ineffectual  to 
pass  title  for  want  of  delivery;  Jenkins  v.  Harrison,  66  Ala. 
345  (1880).  See,  also,  Bowles  v.  Woodson,  6  Gratt  78  ;  Black- 
nail  V.  Parish,  6  Jones'  Eq.  (N.  C.)  70 ;  Thayer  v.  Luce,  22  Ohio 
St.  62;  Work  v.  Corhick,  81  111.  317.  But  see  Cannon  v.  Can- 
non, 26  N.  J.  Eq.  316 ;  Overman  v.  Kerr,  17  la.  485 ;  Parker  v. 
Parker,  1  Gray  409;  Sanborn  v.  Sanborn,  7  Gray  142;  San- 
born V.  Chamberlin,  101  Mass.  409,  per  Gray,  C.  J.,  contra.  So 
it  has  been  held  that  a  deed  delivered  to  a  third  party  as  an 
escrow,  may,  on  the  performance  of  the  condition,  be  enforced 
by  the  grantee  as  a  memorandum  of  a  contract  for  the  sale  of 
land;  Campbell  v.  Thomas,  42  Wis.  437  (1887) ;  Popp  v.  Swanke, 


1514  WAIN    V.    WAKLTEUS. 

«;8  Wis.  304  (1887);  Cannon  v.  Handley,  72  (\il.  133  (1887). 
But  see  Cu^'j^'er  r.  Lansin*,',  43  N.  V.  o^O,  reversing  the  decision 
in  57  Barb.  421,  contra.  As  to  entrie.s  by  auctioneers  and  brokers 
in  their  sak's-ljooks  and  bont^dit  and  sohl  notfs,  see  infra. 

Incorporation  of  unsigned  writings  by  reference.  —  It  is  Well 
settled,  both  in  this  country  and  in  Knj,dand,  that  (he  nienio- 
randuiu  niav  consist  of  more  than  one  writing.  It  is  also  well 
settliMl  that  if  the  ditlerenl  parts  are  each  si^Mied  by  the  de- 
fendant, no  express  reference  to  each  other  is  necessary.  Parol 
evidence  is  coni{)etent  to  apply  to  the  contract  each  part  which 
is  duly  sit,Mie(l,  just  :us  in  the  case  of  a  sin«;le  writing'  parol 
evidence  is  admissible  for  the  same  purpose.  See  Jenkins  v. 
Harrison,  00  Ala.  345  (1880),  and  csuses  cited  infra.  But  when 
one  paper  is  signed  and  the  othei-s  unsigned,  all  U-ing  necessary 
to  constitute  a  sullicieiit  memorandum,  it  is  uot  enough  that 
the  (litTerent  pai)ers  can  Ihj  shown  by  parol  to  refer  to  tiie 
same  contract,  but  there  must  Ik^  .some  reference  in  the  signed 
l)ai)er  to  th(»se  which  are  unsigned.  Thus  in  the  celebrated 
case  of  liovdell  v.  Drummond,  11  Kast  142,  it  wius  held,  where 
the  defendant  sigiu-cl  his  mime  in  a  Iniok  entitled  "Shake- 
speare Subscribers  —  thi'ir  Sigmitures,"  that  since  there  was  nt) 
refcr(!nce  in  the  book  to  a  i)rospect\is  issued  by  the  plaintiff, 
the  two  could  not  be  read  together  so  as  to  establish  a  suthcient 
memorandum  under  the  statute.  See  Saunderson  v.  Jackson, 
2  B.  *fc  1*.  238;  Allen  r.  Bennet,  3  Taunt.  101»;  Jackson  v. 
Lowe,  1  liing.  '.*;  Johnsou  v.  Dodgson.  2  M.  »fc  W.  658;  Jacob 
V.  Kirk,  2  Mood.  c\:  R.  221  ;  I'.uxtoii  r.  Rust.  L  \{  7  Kx.  1,271>; 
First  Baptist  Church  v.  Bigelow,  10  Wend.  2S  ;  O'DonneU  v. 
Leeman,  43  Me.  158;  Jefts  r.  York,  10  (^ish.  3<>2;  Khoades  v. 
Castner,  12  Allen  130;  Sanborn  v.  Noekin,  20  Min.  178;  Ridg- 
way  V.  Ingram,  30  Ind.  145;  Thayer  v.  Luce,  22  Ohio  St.  02; 
Wiley  V.  Roberts,  27  Mo.  388  ;  Shafer  v.  Farmers'  and  Mechanics' 
Bank,  59  Pa.  St.  144;  Jolmson  v.  Buck,  35  X.  J.  L.  338;  Frank 
V.  Miller,  38  Md.  401;  Fisher  v.  Kuhn,  54  Mi.ss.  480:  Lee  t'. 
Mahoney,  9  la.  344.  So  in  order  that  the  conditions  of  an 
auction  sale  may  form  a  part  of  the  auctioneer's  memorandum 
they  must  be  expressly  referred  to  therein;  Morton  v.  Dean,  13 
Met.  385;  Hinde  v.  Whitehouse,  7  East  558;  Kenworthy  v. 
Schofield,  2  B.  &  C.  945 ;  Rishton  v.  Whatmore,  8  Ch.  D.  467  ; 
Riley  v.  Farnsworth,  116  Mass.  223.  Two  well-known  cases  in 
this  country  would  seem  to  have  been  decided  in  violation  of 


WAIN   V.    WARLTERS.  1515 

the  well-recognized  principle  of  law  now  under  consideration. 
The  first  is  Salmon  Falls  Mfg.  Co.  v.  Goddard,  14  How.  44(3,  in 
which  a  bill  of  parcels  was  allowed  to  be  read  in  connection  with 
a  memorandum  signed  by  the  defendant  which  contained  no 
reference  to  it.  In  fact  the  bill  of  parcels  was  not  in  existence 
when  the  memorandum  signed  by  the  defendant  was  drawn 
up.  In  the  other  case,  Lerned  v.  Wannemacher,  9  Allen  412, 
it  was  held  that  the  two  parts  of  a  contract  drawn  up  in 
duplicate  could  be  read  together  in  order  to  establish  a  suffi- 
cient memorandum,  although  neither  contained  any  internal 
reference  to  the  other.  Both  of  these  cases  have  been  much 
criticised,  and  it  is  indeed  difficult  to  reconcile  them  with 
principle  or  authority.  See  the  dissenting  opinion  of  Mr. 
Justice  Curtis  in  Salmon  Falls  Manf.  Co.  v.  Goddard,  supra. 
See,  also,  the  language  of  Doe,  C.  J.,  in  Brown  v.  Whipple,  58 
N.  H.  229  (1877). 

The  most  difficult  question  on  this  branch  of  the  subject, 
namely,  how  specific  the  reference  to  the  unsigned  paper  must  ])e, 
and  how  far  parol  evidence  is  admissible  to  explain  and  limit 
a  general  reference,  has  received  much  attention  in  the  last 
few  years  from  the  courts  both  of  England  and  of  this  country. 
As  a  result  of  the  most  recent  decisions,  it  w^ould  seem  that, 
provided  it  appear  in  the  signed  writing  that  some  other  paper 
is  referred  to,  parol  evidence  is  admissible  to  apply  the  genei-al 
reference  to  the  particular  paper.  Thus  in  the  recent  case  of 
Beckwith  v.  Talbot,  95  U.  S.  289  (1877),  the  unsigned  paper 
was  referred  to  as  "  the  agreement,"  and  this  was  held  to  be  a 
sufficient  reference.  Mr.  Justice  Bradley,  in  his  opinion,  saj-s : 
"  It  is  undoubtedly  a  general  rule  that  collateral  papers,  adduced 
to  supply  the  defect  of  signature  of  a  written  agreement  under 
the  Statute  of  Frauds,  should  on  their  face  sufficiently  demon- 
strate their  reference  to  such  agreement  without  the  aid  of 
parol  proof.  But  the  rule  is  not  absolute.  There  may  be  cases 
in  which  it  would  be  a  violation  of  reason  and  common  sense  to 
ignore  a  reference  which  derives  its  significance  from  such  proof." 
So  in  Smith  v.  Colby,  136  Mass.  562  (1884),  the  words  in  a 
letter  "  We  will  undertake  the  croquet  job  upon  the  terms 
agreed  upon  when  at  your  place,"  were  held  to  contain  a  suf- 
ficiently specific  reference  to  a  written  agreement  signed  by  the 
plaintiff,  but  not  signed  by  the  defendant.  But  see  the 
opinion  of  Doe,  C.  J.,  in  Brown  v.  Whipple,  58  N.  H.  229,  in 


1516  WAIN    V.    WAllLTKliS. 

wliicli  till'  laiif,Mia^e  of  Mr.  Justice  Bnulk'y,  »upra,  is  cntni^td. 
In  u  late  Kii^^lish  ease,  Loiij,'  c.  Millar,  4  C.  1'.  D.  450.  The.si;;er, 
L.  .).,  would  seem  to  have  stjuaiely  ueeeptetl  im  law  the  propoKJ- 
tioii  that  where  it  apjjears  hy  the  sii^Mjed  writing'  thatsonu-  othtr 
writing  is  referred  to,  parol  evi<lenie  is  always  adinissihle  l<» 
identify  that  writint:^.  Ht;  says:  ••  When  it  is  proposed  to  prove 
the  existence  of  a  cniitratt  of  several  doi;unients,  it  must  appear 
U[)on  the  face  of  the  instrument,  signed  l»y  the  jiarty  t<»  Im* 
charged,  that  reference  is  madt;  to  another  document,  an<l  this 
omission  cannot  he  supplitil  hy  vcrl>al  cvidt-ncr.  "  The  other 
late  ICnglish  leases  would  seem  to  Ik;  in  accord;  Uidgway  r 
Wharton,  G  II.  L.  ('as.  "JOS:  Baumann  v.  James,  :>  (h.  App. 
508;  Pierce  v.  Ci)rf,  L.  II.  '.•  (J.  !'..  JIO;  Kishton  r.  Whatiuore, 
8  Ch.  I).  4M7;  Shardlow  r.  Coiterell,  JO  Ch.  I).  !H)  (lH8l); 
Kroidieim  i>.  Johnson,  7  Ch.  D.  <;<> ;  Cave  <•.  Hastings,  7  C^.  B. 
1).  1J5;  Craig  v.  Klliott,  1.'.  1..  U.  Ir.  l':.7  (1884);  Studds  v. 
Watson,  28  Ch.  I).  305  (l^^"*)'  Wyl.son  r.  Dunn,  ;U  Ch.  I). 
5»)9  (1887).  For  the  latest  American  law  on  the  suhje<t,  .see 
Western  rni(»n  Tel.  Co.  v.  R.  U.  Co.,  .-!»;  HI.  •24»')  ;  Boston  & 
Alhany  K.  K.  Co.  v.  Richardson.  1:'.")  Ma.ss.  473;  Doherty  r. 
Hill,  144  .Ma.ss.  4<)5  (18.S7);  District  of  Columhia  v.  John.son.  1 
.Mackey  ( D.  C.)  51  (1881);  Moses  r.  McClain,  Mi  .\la.  :'.7<> 
(188f));  Oliver  v.  Ala.  Gold  Life  Insu.  Co..  /-/.,  417;  Pr.k 
r.  Vandemark,  09  N.  V.  2!>  (lss5);  North  r.  .Mm. 1.1.  7:'.  (ia. 
400  (1884);  Bo.sckeln  r.  Mc(iowan,  \'2  .M...  .\pp.  5o7  (ISS'J); 
Tiee  v.  Freeman,  30  Min.  389  (1883);  Smith  i-.  Jone.s,  00  (la. 
338  (1881). 

Papers  physically  connected  at  the  time  of  signing  may  In- 
read  together  ,  and  it  is  immaterial  that  they  suhse(|uently 
become  severed;  Kcnwoithy  v.  Schotield,  -  !>.  \-  ( '.  1H5.  fur 
Holroyd,  J.;  Tallman  r.  Franklin,  14  N.  V.  5,s4. 

The  signature.  —  The  statute  not  only  requires  a  writing,  hut 
requires  also  that  the  writing  should  be  aii/ntil  by  the  party 
to  be  charged,  or  his  agent  thereunto  lawfully  authorized.  The 
courts  have  interpreted  the  word  "  signed  "  as  employed  in  the 
statute  in  contradistinction  to  the  word  "subscribed."  "  If  this 
were  the  first  case  on  the  Statute  of  Frauds,  I  should  have 
doubted  whether,  if  the  vendee  put  his  name  at  the  top  of  the 
document,  this  would  have  been  a  signing  within  the  statutes. 
But  it  has  been  decided  that  it  does  not  signify  where  the  name 
is  put,  if  it  be  put  somewhere  on  the  document  by  the  parties 


WAIN   V.    WARLTERS. 


1517 


themselves  who  are  to  be  bound  by  the  signature,  or  by  the  per- 
son having  authority  from  them  to  make  a  contract  on  their 
behalf."  Crompton,  J.,  in  Durrell  v.  Evans,  31  L.  J.  Ex.  337, 
clscided  in  the  Exchequer  Chamber  in  18G2. 

The  law  is  well  settled,  accordingly,  both  in  England  and  in 
this  country,  that  the  signature  may  be  at  the  top  or  in  the  mid- 
dle of  the  writing,  as  well  as  at  the  end.    So  the  signature  may  be 
by  initials  ;  Thillimore  v.  Barry,  1  Camp.  513 ;  Sanborn  v.  Flag- 
ler, 9  Allen  474.     And  a  printed  signature  will  satisfy  the  stat- 
ute ;  Schneider  v.  Norris,  2  M.  &  S.  286;  Drury  v.  Young,  58 
Md.    546    (1882).      The    written    or   printed   name,   however, 
wherever  it  is  placed  in  the  document,  must  be  intended  to 
authenticate  it.     It  is  always  a  question  for  the  jury,  whether 
the  defendant  adopted  the  printed  signature  pro  hac  vice  and 
whether  he  intended  to  be  bound  by  the  writing  as  it  stood,  or 
whether  it  was  left  unsigned  at  the  foot  because  he  refused  to 
complete  it.     Tlius  in  Johnson  v.  Dodgson,  2  M.  &  W.  653,  the 
memorandum  was  drawn  up  by  the  defendant  in  his  own  hand- 
writing, "  Sold  John  Dodgson,  etc.,"  and  signed  at  the  foot  by 
the  plaintiff  only,  but  remained  in  the  possession  of  the  defend- 
ant.    It  was  held  by  the  court,  that  under  these  circumstances, 
it  was  plain  that  the  defendant  intended  to  be  bound  by  his 
signature  at  the  top  of  the  memorandum.     So  in  Schneider  v. 
Norris,  2  M.  &  S.  286,  where  the  seller  tilled  up  the  blank  in  a 
printed  bill  of  parcels,  with  the  name  of  the   purchaser,  and 
afterwards  delivered  it  to  him,  it  Avas  held  that  this  was  a  suf- 
ficient adoption  of  the  seller's  name  printed  at  the  top.     So  m 
a  recent  Mayland  decision,  Drury  v.  Young,  58  Md.  546  (1882), 
an  instructive  case  upon  this  branch  of  the  subject,  the  only 
signature    was    the    following   letter-head,    ''Office    of    Drury, 
Ijams  &  Rankin,  wholesale  and  retail  grocers,  etc.,"  and  the 
court  were  inclined  to  hold  that  this  would  be  a  sufficient  signa- 
ture if  brought  home  to  the  defendant,  although  the  writing 
remained  in  his  possession  and  was  not  signed  by  the  plaintiff. 
But  in    Boardman  v.   Spooner,  13   Allen   353,  where   the  pur- 
chaser stamped  his  name  and  a  date  on  the  bill  of  parcels,  with- 
out delivering  it  to  the  seller,  in  the  absence  of  evidence  to 
show  that  he  had  adopted  such  a  stamp  as  a  signature,  and  had 
affixed  it  to  the  instrument  with  the   intent  to  bind   himself 
thereby,  it  was  held  that  there  was  no  memorandum  properly 
signed  under  the  statute.     See,  also,  in  general,  Saunderson  v. 


lol8  WAIN   V.  \vai:lti:u8. 

Jackson,  J  l'».  .V  I'.  2:JH ;  Siul  r.  liounlilloii.  -J*;  L.  .!.('.  P.  78; 
Kntiihuiin  <'.  .loliiison,  7  C\i.  I).  HO;  ( 'iilun  v.  ("iiton,  L.  R.  -J  11. 
L.  127;  JoiJL's  r.  Victoria  (Jnivin^'  Dtuk  Co.,  2  C^.  li.  1).  oli: 
Bennett  r.  Brunilitt,  L.  li.  :i  C  1*.  2M;  lluwkeswoith  r.  CluifT.  y, 
r)4  I..  .1.  Cli.  72  (1«8());  Clasou  r.  IJailey,  14  Johns.  4H4 ; 
Penniniiin  c  Hartshorn,  l^J  Mass.  H7  ;  IMen  »•.  Kiltrucl|,'e,  7 
Mass.  2:;;'.;  Ilodykins  r.  Bond,  1  N.  II.  2S7  ;  Hawkins  v.  Chiiee, 
lU  I'iik.  r)05;  Sanborn  r.  S;inhorn,  7  (iray  11-;  I  la/.ar«l  r.  I)ay» 
14  Allen  1S7. 

Tnder  the  New  York  statute,  whieli  reijuires  the  nienioran- 
duni  to  be  subscribed,  it  is  lield  tliat  actual  suljscription  is 
necessary:  Davis  /•.  Shields,  2t;  W.nd.  :'- 11  :  Medivern  r.  Fleui- 
niinrr,  \2  Daly  (  N.  V.)  28i>  (l«s4). 

Ill  Sclby  V.  Selby,  3  Meriv.  2,  it  w;is  held  by  Sir  William 
(irant,  that  a  letter  sijj^ned  "your  affectionate  mother,"  con- 
tained no  sufhcient  sijjnaturt'  within  the  intent  of  the  statute; 
and  see  Skcllon  r.  ('(de,  1  De  (J.  iV  J.  r>s7.  These  eases  have 
been  somewhat  severely  criticised  as  jmttinj,'  too  narrow  a  con- 
struction upon  tin-  statute,  and,  as  has  U'eii  said,  it  is  hard  to 
distinguish  between  initials  and  any  otlu-r  description  of  his 
identity  which  may  be  adopted  by  the  signer  of  a  paper. 

Authority  to  affix  signature. —  l^xce[>ting  in  those  states,  like 
New  llam[)shire,  where  the  authi>rity  of  the  agent  is  expressly 
required  to  be  in  writing,  a  parol  authority  is  suflieient  ;  and 
a  subsequent  ratification  is  eipiivalent  to  ;i  prior  authority; 
Soames  v.  Spencer,  1  Dowl.  «.S:  \i.  1^2;  MeI.ean  v.  Dunn,  4  Ming. 
722 ;  Davis  r.  Shields,  24  Wend.  324 ;  Kggleston  v.  Wagner, 
4i;  Mich.  »;10  (18S1):   Hawkins  v.  Baker,  4>>  X.  V.  (^HU\. 

An  agent  authori/x'd  to  make  in  behalf  of  his  princijtal  a  con- 
tract within  the  Statute  of  Frautls,  has  also  an  authority  by 
implicaticMi  to  bind  him  by  a  note  or  memorandum  :  and  even 
after  the  termination  of  the  agency,  it  seems  that  the  agent  may 
still  make  and  deliver  to  the  other  contracting  jnirty  a  mem- 
orandum binding  on  his  principal,  unless  his  authority  so  to  do 
has  been  expressly  revoked ;  Williams  v.  Bacon,  2  Gray  387, 
per  Merrick,  J.;  Elliot  v.  Barrett,  144  Mass.  256  (1887).  But 
see  Smith  v.  Arnold,  5  Mas.  (C.  C.)  414.  See  infra  as  to  auc- 
tioneers. It  is  of  course  unnecessary  that  the  agent's  name 
should  appear  in  the  memorandum ;  Hunter  v.  Giddings,  07 
Mass.  41.  See  i7ifra  as  to  the  necessity  of  the  principal's  name 
appearing. 


WAIN    V.    WARLTERS.  1619 

An  agent  cannot  delegate  his  authority  to  make  a  memoran- 
dum, unless  so  empowered  by  his  principal ;  Townsend  v.  Drake- 
ford,  1  C.  &  K.  20  ;  Henderson  v.  Barnewall,  1  Y.  &  J.  387. 
Bat  see  infra  as  to  auctioneers'  clerks. 

It  is  well  established  that  neither  of  the  contracting  parties 
can  be  the  agent  of  the  other  for  the  purpose  of  making  and 
signing  a  valid  memorandum  within  the  Statute  of  Frauds ; 
Wright  V.  Dannah,  2  Camp.  203 ;  Bird  v.  Boulter,  4  B.  &  Ad. 
443 ;  Farebrother  v.  Simmons,  5  B.  &  Aid.  383 ;  Sharman  v. 
Brandt,  L.  R.  6  Q.  B.  720 ;  Murphy  v.  Boise,  L.  R.  10  Ex.  126 ; 
Robinson  v.  Garth,  6  Ala.  204.  But  see  Ennis  v.  Walker,  3 
Blackf.  472 ;  Johnson  v.  Buck,  35  N.  J.  L.  338.  But  the  agent 
of  one  party  may,  if  expressly  so  authorized,  sign  the  memo- 
randum in  belialf  of  the  other  party  ;  Graham  v.  Muson,  5  Bing. 
N.  C.  603  ;  Graham  v.  Fretwell,  3  M.  &  G.  368 ;  Simmons  v. 
Humble,  13  C.  B.  N.  S.  258.  And  see  Bamber  v.  Savage,  52 
Wis.  110  (1881). 

Entries  by  auctioneers. — A  common  application  of  this  prin- 
ciple is  the  authority  of  an  auctioneer,  who  is,  strictly  speaking, 
the  agent  of  the  seller,  to  bind  the  purchaser  as  well  as  the 
seller  by  entries  in  his  books  or  by  other  writings  ;  Hinde  •  v. 
Whitehouse,  7  East  558 ;  Morton  v.  Dean,  13  Met.  385 ;  Gill 
V.  Bicknell,  2  Gush.  355,  ])er  Shaw,  C.  J.  ;  Springer  v.  Klein- 
sorge,  83  Mo.  152  (1884).  On  the  principle  laid  down  supra^ 
the  auctioneer  cannot  himself  sue  on  a  contract  within  the 
statute  evidenced  by  a  memorandum  made  by  himself ;  Fare- 
brother  V.  Simmons,  supra  ;  Rayner  v.  Linthorne,  2  C.  &  P.  124; 
Smith  V.  Arnold,  5  Mas.  (C.  C.)  417 ;  Bent  v.  Cobb,  9  Gray 
397 ;  Brent  v.  Green,  6  Leigh  16 ;  and  see  cases  cited  supra. 

Auctioneers  differ  from  other  agents  in  that  their  memoranda 
must  be  made  at  the  time  of  the  sale,  at  least  in  order  to  bind 
the  puroliaser;  Buckmaster  v.  Harrop,  13  Ves.  456;  Mews  v. 
Can,  1  H.  &  N.  484;  Smith  v.  Arnold,  supra;  Horton  v. 
McCarty,  53  Me.  394 ;  Williams  v.  Bacon,  2  Gray  387 ;  Bam- 
ber V.  Savage,  52  Wis.  Ill  (1881);  Hewes  v.  Taylor,  70 
Penn.  St.  387.  In  a  recent  Massachusetts  case,  Marcus  v. 
Boston,  136  Mass.  350  (1884),  it  was  held  that  a  bill  in 
equity  could  not  be  maintained  which  was  brought  by  a  per- 
son claiming  to  be  the  highest  bidder  at  an  auction  sale  of 
land,  against  the  auctioneer  and  the  person  to  whom  the 
land  was  struck  off,  and  the  memorandum  of  sale  executed. 


ir)20  WAIN    V.    \VAltLTKIt8 

to  compel  the  iiuctioneer  to  si^'ii  a  luemoruiulum  of  sale  declar- 
ing,' the  phiiutilf  to  \>v  the  ])iiich;user. 

There  is  ^'iiMt  iliversity  amoiij^  the  reported  ciuscs  ius  l») 
whether  ;iu  iiuctioneer  eun  dele^Mte  his  authority  to  sij;n  a  ineiii- 
oraiidiiiii  to  his  tl.-rk,  hut  it  would  seem  hy  the  weight  of 
authoritv  that  he  can  so  deh-j^'ate  it;  Coles  r,  Treetithiek,  U  Ves. 
•2-'A;  Bird  r.  Boulter,  4  B.  iN:  Ad.  44:i;  Henderson  r.  Harnewidl, 
1  Y.  &  J.  387:  (iill  »••  Bieknell,  '2  Cush.  :'.:.:.;  Fro>t  ,-.  Hill,  3 
Wend.  38«;;  Doty  r.  Wilder,  lo  111.  4UT  ;  Alna  r.  Plummer,  4 
(ireenl.  2')8 ;  Hart  v.  Wi>ods,  7  Blaekf.  o»I8.  But  see  I'ierce 
V.  Corf,  L.  K.  '.»  C^.  B.  Jlo;  Mtjulows  v.  Mea<h»ws,  8  McCord 
(S.  C.)  Law  458;  Christie  v.  Simpson,  1  Rich.  (S.  C.)  Law 
407  coiitni. 

By  the  great  weight  of  authority,  in  tin-  <ase  of  an  aiu'tion- 
eer,  as  of  other  agents,  his  actual  signature  is  unnecessary.  It 
is  enough  if  the  memorandum  contain  the  names  of  the  [»ur- 
chaser  and  seller,  together  witii  all  the  I'ssential  terms  of  the 
contract,  and  it  is  immaterial  if  his  own  name  does  n«)t  appi-ar  in 
the  writing;  Morton  r.  Dean,  13  Met.  3S"» ;  Fcssenden  r.  Ma.s- 
sey,  11  Cush.  127;  Ctxldington  v.  (loddard,  lt>  (iray  43«» ;  Mer- 
ritt  V.  Clason,  12  Johns.  102;  Springer  v.  Klein.sorge,  83  Mo. 
152  (1884).  But  see  Uafferty  v.  Lougee,  G3  X.  IL  '.  t  (  lss4) 
contra. 

Brokers'  entries,  bought  and  sold  notes.  —  .\  hroker,  like  an 
auctioneer,  is  the  agent  of  lK)th  i)arties,  an«l  Ijotii  are  Imund  hy 
his  memorandum.  In  this  country  it  is  well  estahlished  law 
that  the  entries  in  a  hrokei's  hooks  constitute  a  good  memoran- 
dum within  the  statute,  and  in  England  the  better  opinion 
would  now  seem  to  he  to  the  same  etTeet,  although  in  the  past 
there  has  been  among  the  Lnglish  judges  a  great  diversity  of 
views  upon  the  subject;  Maclean  v.  Dunn,  4  Bing.  722; 
Thointon  v.  Charles,  1>  M.  »S:  W.  S02 ;  Thonijison  r.  (iardiner, 
1  C.  P.  D.  777;  Merritt  v.  Clason,  12  Johns.  102;  Davis  v. 
Shields,  26  Wend.  341;  Boardman  r.  Spooner,  13  Allen  353; 
Coddington  v.  Goddard,  10  Gray  436.  In  England  the  law 
seems  to  be  that  the  broker's  entry  must  Iw  signed  by  him,  and 
that  his  own  name  must  appear;  (irant  c.  Fletcher,  5  B.  &  C. 
436;  Gorm  v.  Afialo,  6  B.  &  C.  117;  Henderson  v.  Barnewall, 
1  Y.  &  J.  387;  while  in  tliis  country  it  seems  to  be  assumed 
that  the  same  principle  applies  as  in  the  case  of  auctioneers' 
entries.     See  cases  cited  supra. 


WAIN    V.    WAKLTERS.  1521 

The  bought  and  sold  notes  of  a  broker,  if  they  correspond 
with  one  another,  are  hekl  to  be  a  sulticient  memorandum 
within  the  statute ;  Hawes  v.  Foster,  1  M.  &  R.  368 ;  Parton  v. 
Crofts,  33  L.  J.  C.  P.  189 ;  Suydam  v.  Ckxrk,  2  Sandf.  133 ; 
Heffron  v.  Armsby,  61  Mich.  505  (1886)  ;  Greeley-Burnham  Co. 
V.  Capen,  23  Mo.  App.  301  (1886) ;  and  in  LangdelFs  Cases  on 
Sales  (Index,  pp.  1035,  1036)  the  author  argues  with  much 
force  of  reasoning  that  even  a  disagreement  in  the  notes  should 
not  prevent  a  recovery,  provided  the  note  sued  on  contains  all 
the  stipulations  of  the  verbal  agreement.  See  Thompson  v. 
Gardiner,  supra;  Newberry  v.  Wall,  84  N.  Y.  576;  Butler  v. 
Thompson,  92  U.  S.  412.  It  has  been  decided  in  England  that 
if  the  bought  and  sold  notes  disagree,  resort  may  be  had  to  the 
broker's  entry  as  containing  the  true  stipulations  of  the  con- 
tract; Sieve  Wright  v.  Archibald,  17  Q.  B.  103.  But  the  im- 
portant question  as  to  which  is  to  be  considered  the  memoran- 
dum, the  broker's  entry  or  the  bought  and  sold  notes,  when  the 
latter  agree  with  each  other  but  disagree  with  the  entry,  seems 
to  be  still  undecided.  See  Langdell's  Cases  on  Sales,  cited 
supra. 

III.  Contents  of  memorandum.  In  general.  —  A  memorandum 
within  the  statute,  of  whatever  description,  and  whether  con- 
tained in  one  writing  or  in  many,  must  correspond  with  the 
previous  verbal  agreement.  If  stipulations  are  added  in  the 
writing  which  were  not  contained  in  the  verbal  agreement, 
or  if  any  essential  stipulations  of  the  original  contract  are 
omitted,  the  memorandum  is  defective.  "  Unless  the  essential 
terms  of  the  sale  can  be  ascertained  from  the  writing  itself,  or 
by  reference  in  it  to  something  else,  the  writing  is  not  a  com- 
pliance with  the  statute ;  and  if  the  agreement  be  thus  defec- 
tive it  cannot  be  supplied  by  parol  proof,  for  that  would  at 
once  introduce  all  the  mischiefs  which  the  statute  was  intended 
to  prevent."  Mr.  Justice  Clifford,  in  Williams  v.  Morris,  95 
U.  S.  444.  Thus  in  Seaman  v.  Drake,  97  N.  Y.  230  (1884),  a 
memorandum  of  a  contract  of  employment  for  more  than  a 
year  was  held  to  be  insufficient  because  no  mention  was  made 
therein  of  the  nature  of  the  employment.  So  in  Webster  v. 
Clark,  60  N.  H.  36  (1880),  a  memorandum  of  a  contract  for 
a  lease  of  real  estate,  "  buildings  to  be  erected  by  the  lessor," 
was  held  defective,  because  the  writing  did  not  specify  the  kind 
of  buildino-s.      So  the  memorandum  of   such  a  contract  must 


Ifj'J'J  WAIN    V.    \v.\i:i;ii:i:s. 

specify  the  exact  duy  wlieii  the  term  is  to  Ix-^'in  ;  M.ii>hiill  i*. 

BenulK't',  !■»  Cli-   I>-  -•»'^  ^    -^^'^y  *'•  'I'1"»'»I»-^ -"^  ^'''-   ^^    "'*'♦ 

(1«S2);  riuhiii  /••  Tedcastle,  1.")  L.  K.  Ir.  1»;'.>;  Whit.  -. 
McMahon,  IS  L.  l:.  Ir.  400.  So  in  May  i'.  Wiiid,  134  Mass. 
127  (1S8I5),  where  iiii  esseiitiiil  eh'ineiit  of  tlie  eontruet  was 
left  to  he  aj,Meeil  upon  at  some  time  in  the  future,  tlie  writ- 
in^r  was  hehl  insullieient.  So  in  Asheroft  r.  Iluttcrworlli, 
l:3<;  Mass.  511  (1884),  wliere  the  memoramhim  was,  "  NVc  will 

«iil»l»ly  yoii  ^vith  Kii"K^'  kI'^"*"*  '^^  ^''^'  ^'''"*'  '■''^''  ^^•^'  ■'*'M4'L^'  •''^•' "  '^ 
was  hehl  that  this  was  not  explicit  enoui,'h  to  satisfy  the  statute. 
See  mfni  as  to  the  price.  St)  if  ^oods  are  .sold  "snhject  to  the 
buyer's  approval,"  that  condition  must  appear  in  the  memoran- 
dum ;  Boardman  v.  Spooner,  13  .Vllen  3o3.  See,  also,  in  jren- 
eral,  M'LeiiM  r.  NiroU,  7  .hu.  N.  S.  Wi) ;  Uishlon  r.  Whatmore, 
8  Ch.  1).  4ti7  ;  X'inceiit  r.  Vincent,  .V)  L.  .1.  Ch.  I).  181 
(188(;);  (irace  r.  Deunison,  114  Mass.  If,;  |mIz  r.  Toney,  118 
Miiss.  100;  fJardiier  r.  lla/.ilt(.n,  \ -\  Mass.  4l>4 ;  Kemick  i'. 
Sandford,  lis  Muss.  lo2:  Ncwhcrry  r.  Wall,  «'..">  N.  V.  4S4; 
Ullman  r.  Meyer,  10  Ahh.  (N.Y.)  N.  ('.  281  (1882);  M.WiU 
liams  V.  Lawless,  15  Neh.  1:',1  (18S3);  Hppich  v.  Clifford,  G 
Col.  41)3;  UatTerty  r.  Lou^a-e,  «;3  N.  II.  54  (1884). 

Parties.  —  Bv  an  almost  unl>roken  current  of  ilecisions  it  is 
held  that  the  nan\es  of  the  contracting;  parties  must  appear 
in  the  nicnioranduni ;  Champion  '•.  IMummer,  1  N.  \l.  2.")2 ; 
Klinitz  /'.  Surry,  5  Ksp.  2»>7  ;  Williiims  r.  Byrnes,  'J  .Jur.  N.  S. 
3(;3;  An(U'r.s(.n  r.  Harold,  lO  Ohio  31M>:  Calkins  v.  Falk.  38 
How.  I'l.  il.<;2;  McElroy  r.  Leery,  Ol  Md.  397  (1883);  H;iw- 
kiusou  r.  Harmon,  f)^  Wis.  551  (188«))  ;  Lincoln  v.  Va'w  Tre- 
servin<,K'o.,  132  Mass.  129  (1882).  So  it  has  l)een  held  that 
a  memoranilum  of  a  contract  of  ji^uaranty  must  contain  tlie 
name  of  the  creditor;  Williams  r.  Lake,  2  El.  &  E.  349. 

It  would  seem  that  a  memorandum  of  a  contract  of  sale  must 
show  who  is  the  buyer  and  who  is  the  seller ;  Bailey  v.  Og^den,  3 
Johns.  399.  See  the  di.ssenting  opinion  of  Mr.  Justice  Curtis, 
in  Salmon  Falls  Manf.  Co.  v.  Goddard,  14  How.  440 ;  but  the 
courts  have  generally  been  disinclined  to  reject  parol  evidence 
introduced  for  the  purpose  of  explaining  the  relationship  of  the 
parties ;  Newell  v.  Radford,  L.  R.  3  C.  P.  52 ;  Salmon  Falls 
Manf.  Co.  V.  Goddard,  supra  ;  Coddington  v.  Goddard,  16  Gray 
436 ;  Sanborn  v.  Flagler,  9  Allen  474. 

It  would  seem  that  the   parties  to  the  contract  must  be  re- 


WAIN   V.    WARLTERS.  1523 

ferred  to  in  the  memorandum  qua  contracting  parties.  Thus 
in  Yanderbergh  v.  Spooner,  L.  R.  1  Ex.  316,  the  following  mem- 
orandum was  held  defective :  "  D.  Spooner  agrees  to  buy  the 
whole  of  the  lots  of  marble  purchased  by  jVIr.  Vanderbergh, 
etc."  So  by  a  recent  decision  in  the  U.  S.  Supreme  Court  it 
was  determined  in  the  case  of  an  auctioneer's  memorandum 
that  a  reference  to  the  seller,  not  as  seller,  but  as  a  person  of 
whom  information  about  the  property  could  be  obtained,  was 
faulty;  Grafton  v.  Cummings,  99  U.  S.  100  (1878). 

In  Sale  v.  Lambert,  L.  R.  18  Eq.  1,  it  was  held  that  a  descrip- 
tion of  the  seller  as  "  the  proprietor  "  was  a  suihcient  reference, 
although  the  seller's  name  was  not  mentioned.  See,  also,  Com- 
mins  V.  Scott,  L.  R.  20  Eq.  11.  But  a  reference  to  him  as  "the 
vendor,"  is  held  insufficient ;  Potter  v.  Duffield,  L.  R.  18  Eq.  4. 
See,  also,  Rossiter  v.  Miller,  3  App.  Cas.  1121 ;  Jarrett  v.  Hunter, 
34  Ch.  D.  182  (1886)  ;  Re  Hudson,  54  L.  J.  Ch.  811  (1885). 
Compare  Jones  v.  Dow,  142  Mass.  130  (1886). 

The  decisions  are  uniformly  to  the  effect  that  in  a  memoran- 
dum signed  by  an  agent,  the  principal's  name  need  not  appear ; 
Kenworthy  v.  Scofield,  2  B.  &  C.  945 ;  Williams  v.  Bacon,  2 
Gray  387  ;  McWilliams  v.  Lawless,  15  Neb.  131  (1883)  ;  Cona- 
Avay  V.  Sweeney,  24  W.  Va.  643  (1884)  ;  Neaves  v.  Mining  Co., 
90  N.  C.  412.  This  doctrine,  somewhat  questionable  on  prin- 
ciple, the  courts  have  refused  to  extend  to  the  case  of  an 
auctioneer's  memorandum.  It  is  held,  accordingly,  that  his 
signature  will  not  supply  the  place  of  a  reference  to  the  name 
of  even  the  seller;  Potter  v.  Duffield,  supra;  Sherburne  v. 
Shaw,  1  N.  H.  157 ;  Grafton  v.  Cummings,  swpra. 

Price.  —  In  a  contract  of  sale  it  is  held  that  the  price,  if 
agreed  upon  by  the  parties,  is  one  of  the  essential  terms  of  the 
contract,  and  must  be  contained  in  the  memorandum ;  and  the 
same  rule  prevails  even  in  those  jurisdictions  where  it  is  pro- 
vided by  statute  that  the  consideration  need  not  be  expressed 
in  the  memorandum ;  Aeebal  v.  Levy,  10  Bing.  376 ;  Elmore 
V.  Kingscote,  5  B.  ^  C.  583 ;  Smith  v.  Arnold,  5  Mas.  (C.  C.) 
416 ;  Soles  v.  Hickman,  20  Penn.  St.  180 ;  O'Neill  v.  Crane,  67 
Mo.  250 ;  Williams  v.  Morris,  95  U.  S.  444 ;  Ascroft  v.  Butter- 
worth,  136  Mass.  511  (1884)  ;  Phelps  v.  Stillings,  60  N.  H.  505 
(1881).  So  in  a  receipt  for  part  payment  of  the  price  of  real 
estate  it  would  seem  that  the  full  price  agreed  upon  must  be 
stated;    Phillips   v.  Adams,    70  Ala.  373    (1881);    Wright   v. 


1524  WAIN    V.    \N  AULTKUS. 

Mischo,  .V2  N.  V.  SuiJtT.  C't.  -41  (1^H.'»).  Hut  see  Thonibury 
V.  Musteii,  8H  N.  C.  203  (18«8):  Kllis  v.  limy,  7l»  Mo.  227 
(1883),  rontnt.  U  M(»  pricf  Im*  jij^reed  ujmuj  l»y  the  purtifM, 
none,  of  course,  netil  be  stated  in  the  nienioninihun ;  Iloudly 
V.  McLiiue,  10  n\u^.  482;  Ashtroft  r.  Morrin,  4  M.  vV  (J.  450; 
Ar^ais  Co.  r.  AllKiny,  o.")  X.  Y.  40o ;  Norton  v.  (i»le,  l>5  111.  r>38. 
But  st'f  Jiinu's  V.  Muir,  33  .Mieh,  224. 

Credit.  —  If  ii  s;il»'  is  niiule  on  citMlit  the  teiins  of  the  credit 
must  he  stiitt'd  iu  thf  nieiuoninduni ;  Wii^iit  v.  Week**,  2o  N.  Y. 
ir,8;  Norris  r.  lUair,  31»  Ind.  '.•<>;  WiUi.ims  »•.  Kohinson,  73  Me. 
18H;  Schroede  r.  TaiiU',  11  .Mo.  App.  2»»7  (iHMl);  (Jiiult  o. 
Storniont,  51  Mi(  h.  r»3<5  (1883).  It  wouhl  seenj  that  if  nothinf;^ 
is  said  as  to  the  time  of  payment,  the  memorandum  may  Iw 
silent  on  the  subject,  since  it  will  Ik;  presumed  to  \tv  a  eiwh 
tnmsactiou  ;  Hawkins  r.  Chaee,  10  Pick.  502.  Hut  see  the 
laii^ua^M-  lit"  Ml.  .Instil  (•  (  urtis  in  Salmon  Falls  .Manf.  Co.  v. 
(ioddard,   1  1  How.  44*;. 

^Warranty.  —  It  was  decided  in  an  early  New  York  case  that 
if  ^oods  are  sold  with  an  cxpre.s.s  warranty  it  must  U'  ho  stated 
in  the  nicmoianduni ;  I'clticr  »•.  Collins,  3  Wmd.  45!>.  Hut  it 
would  sccni  thill  this  must  ilepend  uj)on  wluther  tin*  warranty 
is  intended  by  the  parties  as  a  condition  of  the  sale  or  lus  an 
indi'pt'udent  iii^rcement. 

Time  and  place  of  delivery.  —  A  memorandum  of  ]l  contract 
for  the  saU'  of  ^oo<ls  within  the  statute  must  state  the  time 
ami  place  of  delivery,  if  ai^reeil  upon  by  the  partie.s ;  otherwi.se 
not;  Hawkins  r.  Chace,  10  I'iek.  502;  Kriete  r,  Myer,  iH  Md. 
iniH;  Smith  r.  Shell,  H2  Mo.  215  (lss4);  (Jrceleyd'.urnham  Co. 
V.  Capen,  23  M...  A  pp.  :{0l  ( 1HS»;). 

Description  of  subject-matter.  —  There  have  lx;en  many  caseS 
in  the  last  tew  years  with  reference  to  the  adequacy  of  the 
description  of  the  subject-matter  contained  in  the  memorandum. 
The  later  tendency  seems  to  lx»,  as  in  the  ca.se  of  the  incorpora- 
tion of  unsigned  papei-s  referred  to  in  the  signed  writing,  in  the 
direction  of  admitting  the  introduction  of  parol  evidence  in 
order  to  establish  the  identity  of  the  subject-matter.  There  is, 
however,  considerable  conflict  among  the  decisions  as  to  how 
specitic  a  description  the  memorandum  must  contain.  In  a 
recent  Michigan  case,  the  court  say  in  reference  to  the  suf- 
ficiency of  the  description  in  a  memorandum  of  the  sale  of  real 
estate :  ''  The  degree  of  certainty  with  which  the  premises  must 


WAIN    V.    WAliLTEitS.  1525 

be  denoted  is  defined  in  many  books,  and  the  cases  are  extremely 
numerous  in  wliich  tlie  subject  lias  been  illustrated.  Tliey  are 
not  all  harmonious.  But  they  agree  in  this,  that  it  is  not  essen- 
tial that  the  description  have  such  pai'ticulars  and  tokens  of 
identification  as  to  render  a  resort  to  extrinsic  aid  entirely  need- 
less when  the  writing  comes  to  be  applied  to  the  subject-matter. 
The  terms  may  be  abstract  and  of  a  general  nature,  but  they 
must  be  sufficient  to  fit  and  comprehend  the  property  which  is 
the  subject  of  the  transaction,  so  that  with  the  assistance  of 
external  evidence  the  description,  without  being  contradicted 
or  added  to,  can  be  connected  with,  and  applied  to,  the  very 
property  intended,  and  to  the  exclusion  of  all  other  property." 
Eggleston  v.  Wagner,  46  Mich.  GIO  (1881).  Thus  in  Hurley 
V.  Brown,  98  Mass.  545,  it  was  held  that  the  words,  "  A  lot  of 
land  situated  on  Unity  Street,  Lynn,  Mass.,"  was  a  sufficient 
description,  and  that  parol  evidence  was  admissible  to  show 
which  lot  of  land  on  the  street  belonged  to  the  vendor.  See, 
also,  Scanlan  v.  Geddes,  112  Mass.  15 ;  Slater  v.  Smith,  117 
Mass.  96  ;  Mead  v.  Parker,  115  Mass.  413 ;  Mansfield  v.  Hodg- 
don,  S.  C.  Mass.  June  1888.  In  Mead  v.  Parker,  there  was  no 
mention  in  the  body  of  the  writing  of  the  town  in  wliich  the 
property  was  situated,  but  it  was  held  that  it  was  presumed  to 
be  situated  in  the  town  at  which  the  writing  was  dated.  In 
Doherty  v.  Hill,  144  :\rass.  465  (1887),  it  was  held  that  such  a 
description  was  insufficient  if  it  appeared  in  evidence  that  the 
vendor  owned  more  than  one  lot  of  land  on  the  street  mentioned 
in  the  memorandum.  The  language  of  ]Mr.  Justice  Holmes  in 
this  case,  is  especially  instructive.  "  The  plaintiff  argues  that 
there  is  an  ambiguity  introduced  by  parol,  and  that,  therefore, 
it  may  be  removed  by  parol.  But  the  statement  seems  to 
us  misleading.  The  words  show  on  their  face  that  they  may  be 
applicable  to  one  estate  only,  or  to  more  than  one.  If,  on  the 
existing  facts,  they  apply  only  to  one,  then  the  document  iden- 
tifies the  land  ;  if  not,  it  fails  to  do  so.  In  every  case,  the  words 
used  must  be  translated  into  things  and  facts  by  parol  evidence. 
But  if  when  so  translated,  they  do  not  identify  the  estate 
intended,  as  the  only  one  which  would  satisfy  the  description, 
they  do  not  satisfy  the  statute."  If,  accordingly,  it  is  impossi- 
ble to  identify  the  subject-matter  by  parol  evidence,  the  mem- 
orandum is  insufficient.  Oral  evidence  could  not  of  course  be 
admitted  to  show  the  original  intention  of  the  parties,  when 


1;VJ»J  WAIN     V.    NVAIILTKKS. 

undisclostMl  hy  i\n-  writing,  sintir  this  \v«)ul«l  |tlutnly  Imj  aildia^ 
to  tlu'  iiu'iii(>niii(liiin,  iiiid  u  iiiaiiifust  violutioii  of  tliu  Htatiitv. 
'riiu->  tlu'  words  "a  pitM-e  of  laiul,"  without  inoii',  is  a  loo  inileti- 
nitr  <lts(iii»tioii ;  Wla-lan  t-.  Sullivan,  102  Mass.  204.  So  the 
following'  (Ifscriptioiis  are  insuHiirifHt  for  tlu;  Haine  re  lUion : 
"  Thirty  acres  of  laiKJ,"  ilMmlK-rt  r.  HriskiUf,  2;')  S.  C.  fttni  ( 1HH6); 
'' Your  housf,"  Wlialry  »•.  lliiiclmiaii,  22  .Mo.  .Ap)..  4h:;  (1HK»;). 
Sec,  also,  to  the  same  elTeet,  Saulxiru  v.  Nttehin,  20  .Miii.  l»»;l; 
Tiee  /•.  Freeman,  :iO  .Min.  :JH()  (18K3)  ;  Fry  i-.  IMatt,  32  KaiiH. 
<;2  ( 1«84  ) ;  i'iei-soii  r.  Hallanl,  32  .Mill.  2i;3  (  1SH4  )  ;  S.hnKMle  r. 
TaalK!,  11  .Mo.  Apj).  217  (issl).  But  "the  Snow  farm"  is  a 
sullieient  deseriplion ;  IJoUis  r.  IJur^ess,  37  Kans,  4^7  (1887). 
So  "all  of  section  3»J  in  township  15,"  Vindj^uest  v.  Perky, 
lt»  Nel).  2H4.  So  "title  or  ilaini  to  property  l»ou^d»t  of  A.  &  H., 
an<l  known  as  the  (Jentile  property,"  Smith  r.  Freeman,  75  Ala. 
285  (1HH5).  For  other  txamples  of  a  sullieient  <leseription,  see 
I'eMninian  v.  Ilaitshoin,  1:'.  .Mass.  S7  ;  jiarry  e.  (\)omlM>,  1  Pet. 
(140:  (iowen  r.  Kh.u.s,  lol  .Mass.  441» ;  Bishop  r.  Fletcher,  48 
Mi.  h.  555  (18H2);  Thornhury  r.  Masten,  88  N.  ('.  293  (1888); 
I'ul.e  r.  Miller,  Hi  Ind.  1 '.'<);  Fisher  v.  Kuhn,  54  .Miss.  4Ml.  In 
Claik  r.  ( 'hand»erlin,  112  .Mass.  ll>,  it  was  hehl  that  a  de.Hcrii>- 
tioii  of  ccitain  lots  Ity  numUr.  without  n-ference  to  any  plan, 
was  insuflicient.  But  si-e  Springer  »•.  Klcirsorjje,  83  .M^.  152 
(18H4)  onfni. 

In  lCiiL,daiid  the  law  would  scciu  to  1m'  even  more  lil)eral  than 
in  this  couiitry  in  allowini^  external  t-viileiuH'  to  In*  intro(luced 
for  the  i)Urposi'  of  identifyini;  th»'  sulijrel-matt«'r.  'i'hc  follow- 
inir  have  hi-en  held  a  sutlitit-nt  description:  "my  iiouse,"  Cow- 
ley V.  Watts,  17  .lur.  \~-:  "the  property  in  C'jil>le  Street," 
Bleakley  v.  Smith,  11  Sim.  150;  "the  house  in  Newjiort,"  3  M. 
&  K.  353;  "the  intended  new  [>ul)lie  house  at  Putney,"  Wood 
V.  Scarth,  2  K.  &  J.  33;  "the  premises,"  ihi,{. ;  "the  .lolly 
Sailors'  otlices,"  Naylor  v.  (Joodall.  47  L.  .1.  (  h.  53;  ♦•this 
place,"  Waldron  v.  Jacob,  5  Jr.  K.  Va\.  1^J1  ;  "  juoperty  j)ur- 
chased  at  Sun  Inn,  Pinxton,  on  21Hli  March."  Shardlow  v.  Cot- 
terell,  20  C'li.  I).  90.  See,  also,  .M'Murray  r.  Spicer,  L.  K.  5  Fq. 
527;  Ex  parte  Nat.  Prov.  Bank.,  4  Ch.  I).  241:  Nene  Valley 
Drainuoe  Connnissioners  v.  Dunkley,  4  Ch.  I).  1. 

The  consideration.  —  In  Wain  v.  Warlters,  principal  case,  it 
was  decided  that  in  the  memorandum  of  contracts  within  the 
fourth  section    of   the   statute   the   consideration   must  be  ex- 


WAIN    V.    ^yARLTERS.  1527 

pressed.  This  decision  was  followed  in  Saunders  v.  Wakefield, 
4  B.  &  Aid.  595.  In  Egerton  v.  Mathews,  6  East  307,  the 
court  distinguished  between  the  word  "agreement"  in  the 
fourth  section  and  the  words  "  contract "  an  d  "bargain"  em- 
ployed in  the  seventeenth  section  of  the  statute,  expressing  the 
opinion  that  under  the  latter  section  the  consideration  of  the 
contract  need  not  be  expressed  in  the  memorandum.  But  see 
supra  as  to  the  price.  In  the  year  1856  it  was  enacted  by  par- 
liament that  the  consideration  of  a  contract  of  guaranty  need 
not  be  expressed  in  the  memorandum.  In  this  country  the 
whole  subject  is  largely  regulated  by  acts  of  the  legislatures  of 
the  several  states;  in  many  cases  these  acts  being  simply  declar- 
atory of  the  law  as  laid  down  by  the  court  of  last  resort,  and 
in  other  cases  changing  the  law.  See  Packard  v.  Richardson, 
17  Mass.  112 ;  Kerr  v.  Shaw,  13  Johns.  236  ;  Patchin  v.  Swift, 
21  Vt.  292 ;  Gillighan  v.  Boardman,  29  Me.  79 ;  Reed  v.  Evans, 
17  Ohio  128 ;  Hutton  v.  Patchin,  26  Md.  228  ;  Goodnow  v. 
Bond,  59  N.  H.  150  (1879)  ;  Sanders  v.  Barlow,  21  Fed.  Rep. 
836  (1884). 

In  the  state  of  New  York  at  the  present  time  the  law  on  this 
subject  seems  to  be  in  a  state  of  great  uncertainty.  It  w^as  early 
decided  by  the  courts  of  that  state  that  the  consideration 
must  be  denoted  in  the  writing.  A  declaratory  statute  was 
afterwards  passed,  and  in  1863  this  statute  was  repealed.  The 
effect  of  the  repeal  of  this  statute  seems  to  be  still  undecided. 
In  Castle  v.  Beardsley,  10  Hun  343,  and  Spej'crs  v.  Lambert, 
16  Abb.  Pr.  N.  S.  309,  opposite  views  are  adopted.  For  an 
elaborate  discussion  of  the  present  New  York  law  see  Drake  v. 
Seaman,  97  N.  Y.  230  (1884).  See,  also,  Evansville  Nat.  Bank 
V.  Kaufman,  93  N.  Y.  273. 

Both  in  England  and  in  this  country  it  has  always  been  held 
that  a  general  reference  to  the  consideration  is  sufficient  and 
that  it  may  be  inferred  by  implication ;  Stadt  v.  Sill,  9  East 
348;  Ryde  v.  Curtis,  8  D.  &  R.  62 ;  Pace  v.  Marsh,  1  Bing. 
216 ;  Haigh  v.  Brooks,  10  Ad.  &  E.  309 ;  Leonard  v.  Vreden- 
burgh,  8  Johns.  40 ;  Church  v.  Brown,  21  N.  Y.  315 ;  Williams 
V.  Ketchum,  19  Wis.  231 ;  Miller  v.  Cook,  23  N.  Y.  495. 

IV.  Alteration  of  contracts  within  the  statute  by  parol.  — 
It  is  well  established  law  that  those  written  contracts  to  which 
the  Statute  of  Frauds  has  no  application  may  be  subsequently, 
at  any  time   before  breach,  altered  or  varied  in    their  terms, 


l')*28  NVAIN    V.    WAKLTKICS. 

or  iiljsulutt'ly  icscindetl,  by  ii  verluil  iij^rffiiunl  Ui«..ii  inr 
piirti*  s  ;  (i<iss  v.  Loul  Nii<(t'iit,  .'>  li.  iV  A«l.  »»'>,  y^^r  Di'iiiiiaii,  C\  J. 
It'  thf  contract  is  witliiii  the  Mtutute  it  would  hcciii  that  all 
modititatioiis  of  such  a  written  contract  must  thcnistdvcs  U*  in 
writing.  There  is  considcrahlc  conflict,  ho\vcv»'r,  among  the 
earlier  Knglish  cjiHes  on  the  subject,  and  the  law  «»f  Knglaml 
and  of  Massachusetts  is  entirely  at  Viiriancc.  On  one  ]>oint, 
however,  there  is  no  disagreement,  namely,  that  the  plaintiff 
must  declare  upon  the  written  agreement,  and  not  U{H>n  the 
writing  and  the  parol  moditication  together;  (iosM  r.  Lord 
Nugent,  xiipni  ;  Stead  v.  Dauln'r,  10  Ad.  tV'  Kl.  .')7  ;  Whittier  r. 
Dana,  10  Allen  -VI^'k  This  would  seem  to  have  Ix'cn  the  true 
ground  of  decision  in  Marshall  >•.  Lynn,  ♦>  M  A  W  10i».  See 
Hickniaii  r.  Ilaynes,  L.  U.  lo  ('  j'.  r>i»S.  iJul  in  (  ummings  v. 
Arnold,  :;  Met.  4S»;,  and  Stearns  r.  Hall,  J»  ("ush.  M,  it  was 
held  that  a  written  contract  within  the  Htatute  might  be  modi- 
fied by  parol,  and  that  a  readiness  to  perform  the  sulistituted 
contract  woidd  avail  either  the  plaintiff  or  the  defendant  to 
excuse  the  non-performanc«'  of  the  original  agreenient.  In 
England,  on  the  other  hand,  it  is  held  that  an  actuiil  i>erform- 
ance  of  the  sulistituted  contract  and  acceptance  thereof  in 
necessary,  which  will  operate  by  way  «»f  accord  an<l  satisfaction 
of  any  breach  of  the  written  agreement;  I'arke,  H.,  in  Moore  v. 
Campbell,  10  Ex.  ;{:i:5 ;  Leather  Cloth  Co.  r  Ili.'ronimus,  L.  R. 
10  il  II.  140.     Se.-  Long  v.  IlarlwcU,  M  N.  J.  L.  ll*;,  <i.v„r</. 

Ill  llickiuan  r.  Ibiyncs,  L.  U.  10  C.  I*.  o98,  Lindley,  J.,  says: 
"The  result  of  the  c;uses  appears  to  Ik*  that  neither  a  plaintiff  nor 
a  defendant  can  at  law  avail  himself  of  a  parol  agreement  to 
vary  or  enlarge  the  time  for  performing  a  contract  previously 
entered  into  in  writing,  and  required  so  to  Ik;  by  the  Statute  of 
Fraud.;."  But  in  this  case  the  law  is  stated  to  Ik^  that  either 
the  })laintiff  or  defendant  is  excused  from  the  performance  of 
the  original  contract,  if  the  failurt'  to  perform  was  the  result 
of  the  oral  reijuest  of  the  other  party,  since  the  allegation  of 
readiness  to  perform  according  to  the  terms  of  that  contract 
can  then  be  sustained.  Such  an  oral  modification,  however, 
cannot  avail  the  party  at  whose  request  the  change  was  made. 
See,  also,  Cuff  v.  Penn,  1  M.  &  S.  21,  a  decision  which  on  this 
principle  would  seem  to  have  been  in  harmony  with  the  other 
English  cases;  Stead  v.  Dauber,  10  Ad.  &  El.  57;  Tyers  v. 
Rosedale  Iron  Co.,  L.  R.  10   Ex.   lOo:    Plevins  v.  Downing,  1 


WAIN   V.    WARLTEKS.  1529 

C.  P.  D.  220 ;  Stewart  v.  Eddowes,  L.  R.  9  C.  P.  311 ;  Ogle  v. 
Lord  Vane,  L.  R.  2  Q.  B.  275 ;  L.  R.  3  Q.  B.  272  ;  Saunderson 
V.  Graves,  L.  R.  10  Ex.  234.  See,  also,  Stryker  v.  Vanderbilt, 
27  N.  J.  L.  08,  75 ;  Blood  v.  Goodrich,  9  Wend.  68 ;  Ladd  v. 
King,  1  R.  I.  224 ;  Hill  v.  Blake,  97  N.  Y.  216  (1884)  ;  Bar- 
ton V.  Gray,  57  Mich.  622,  632  (1885)  ;  Alta  v.  Bartholomew, 
69  Wis.  43  (1887)  accord.  See,  however,  Blanchard  v.  Trim,  38 
N.  Y.  227;  Organ  v.  Stewart,  60  N.  Y.  413,  419;  Swain  v.  Sea- 
mens,  9  Wall.  254,  277,  which  seem  to  favor  the  less  stringent 
rule  prevailing  in  Massachusetts. 

It  was  decided  in  England,  soon  after  the  passage  of  the  stat- 
ute, that  a  written  contract  Avhich  fell  within  its  provisions 
could  be  rescinded  by  parol ;  Gorman  v.  Salisbury,  1  Vern.  240. 
See,  also,  Norton  v.  Simons,  124  Mass.  19.  In  Noble  v.  Ward, 
L.  R.  1  Ex.  117,  in  which  this  is  assumed  to  be  law,  the  impor- 
tant question  arose  as  to  whether  a  substituted  oral  agreement, 
invalid  under  the  statute,  had  the  effect  of  rescinding  the  origi- 
nal contract.  See,  also,  Moore  v.  Campbell,  10  Ex.  323.  In 
Noble  V.  Ward,  it  was  held  that  such  an  invalid  substituted 
agreement  did  not  per  se  operate  as  a  rescission  of  the  original 
contract.  The  question  would  seem  to  depend  upon  the  inten- 
tion of  the  parties,  whether  or  not  the  continuance  of  the 
original  contract  was  meant  to  l)e  contingent  upon  the  validity 
of  the  verbal  agreement,  and  this  would  appear  to  be  a  ques- 
tion of  fact  for  the  jury. 


noDSALL  r.  i;()Li)i:i;o. 

MICH.  48  (ih'o.  •■).  —  /.v  Tin:  Av.wr.v  hkxcii. 

[KKi'oitrr.K  '.»  KAST,  72.] 

A  n'tiiitor  mai/  ini<t(ir  the  life  of  hin  ilfhtor  to  tlw  extent  of  hi» 
debt  ;  hut  mirh  a  contract  /»  miltHtuntitilli/  a  contract  of  imlem- 
nltif  aijiiinxt  tlic  Iohh  of  the  deht :  and  there/ore  it\  after  the 
death  I'f  the  dehtor,  hitt  execntort*  paif  the  deht  to  the  creditor, 
the  hitter  cannot  iifterwardx  recover  upon  the  policif  ;  althoiiifh 
thr  dihfnr  died  Inxolrent,  and  executory  were  /nrninhed  i"ith 
(he  tneanx  of  j>ai/)nent  /*//  a  third  parti/.  (Hut  sit  Dalfiji  v. 
India  .j-  London  Life  Insurance  Co.,  net  out,  infra,  />.  li'.'T, 
contra.) 

'I'liis  was  ail  action  of  (k'l)t  on  a  policy  of  insiirance  niade 
the  29tli  of  Nov.  ISO:?,  nn«lcr  seal  of  the  dcfcnd.ints,  as  three 
of  the  (liivctors  of  the  I'elicun  Life  Insurance  Companion 
hehalf  of  the  eompany;  whieii  reeited  that  the  plaintiffs,  coach- 
makers  in  Lonj]^  Aere,  being  interested  in  the  life  of  the  l{i<_dit 
lion.  William  Pitt,  and  desirous  of  makini,'an  insurance  thereon 
for  seven  years,  had  suljserihed  and  deliveied  into  the  oHiee  of 
the  company  the  usual  declaration  setting  forth  his  liealth  and 
age,  &c.,  and  having  paid  the  premium  of  IT)/,  lox.  as  a  considera- 
tion for  the  assurance  of  500/.  for  one  year  from  tlie  28t]i  of  Nov. 
1808,  it  was  agreed  that  in  case  Mr.  Pitt  should  hai)pen  to  die  at 
anv  time  within  one  year,  &:c.,  the  funds  of  the  company  should 
be  liable  to  pai/  a)id  wake  i/ood  to  the  plaintiffs,  their  executors, 
&c.,  within  three  months  after  his  demise  should  have  l)een  duly 
certified  to  the  trustees,  &c.,  the  sum  of  500/.  And  further 
that  that  policy  might  be  continued  in  force   from  year  to  year 

1.580 


GODSALL   V.    BOLDERO. 


1531 


until  the  expiration  of  the  term  of  seven  years,  provided  the 
annual  premium  should  be  duly  paid  on  or  before   the   28th 
of  Nov.  in  each  year.     The  plaintiffs  then  averred,  that  at  the 
time   of  making   the   said   assurance,  and  from   thence    until   the 
death  of  Mr.  Pitt,  they  were  interested  in  his  life  to  the  amount 
of  the  sum  insured ;  and  that  they  duly  paid  the  annual  pre- 
mium of  lol.  15s.  before  the  28th  of  Nov.  1804,  and  the  further 
sum  of  15?.  15.S-.  before  the  28th  of  Nov.  1805;  and  that  after 
that  day,  and  while  the  assurance  ivas  in  force,  and  before  exhib- 
iting the  bill  of  the  plaintiffs,  viz.,  on  the  23rd  of  Jan.  1806,  Mr. 
Pitt  died ;  that  his  demise  was  afterwards  duly  certified  to  the 
trustees,  &c. ;  since  when  more  than  three  months  have  elapsed 
before  the  commencement  of  this  suit,  &c. ;  but  that  the  500?. 
has  not  been  paid  or  made  good  to  the  plaintiffs.     There  were 
also  counts  for  so  much  money  had  and  received  by  the  defend- 
ants to  the  plaintiff's  use,  and  upon  an  account  stated.     To 
this   the   defendant  pleaded,  1st,  nil  debent.     2ndly,  that  the 
plaintiffs,  at  the  time  of  making  the  assurance,  and  from  thence 
until  the  death  of  Mr.  Pitt,  were  not  interested  in  his  life  in 
manner  and  form  as  they  have  complained,  &c.     3rdly.    As  to 
the  first  count,  that  the  interest  of  the  plaintiffs  in  the  policy, 
and  thereby  intended  to  be  covered,  was  a  certain  debt  of  500?. 
at  the  time  of  making  the  policy  due  from   Mr.  Pitt  to  the 
plaintiffs,  and  no  other ;  and  that  the  said  debt  afterwards,  and 
after  the  death  of  Mr.  Pitt,  and  before  the  exhibiting  of  the  plain- 
tiff's bill,  to  wit,  on  the  6th  of  March,  1806,  was  fulhj  paid  to 
the  plaintiffs  by  the  Earl  of  Chatham  and  the  Lord  Bishop  of 
Lincoln,  executors  of  the  will  of  Mr.  Pitt.     Issues  were  taken 
on  the  first  two  pleas  :  and  as  to  the  last,  the  plaintiffs,  pro- 
testing that  their  interest  in  the  policy  thereby  intended  to  be 
covered  was  not  the  said  debt  mentioned  in  that  plea  to  be  due 
to  them  from  Mr.  Pitt,  and  no  other,  rephed,  that  the  said  debt 
was  not  afterwards,  and  after  the  death  of  :\Ir.  Pitt,  and  before 
the  exhibiting  of  their  bill,  fully  paid  to  them  by  the  Earl  of 
Chatham  and  Lord  Bishop  of  Lincoln,  executors  of  Mr.  Pitt,  in 
manner  and  form  as  alleged,  &c.:    on  which  also    issue   was 

joined. 

The  defendants  paid  31?.  («)  into  court  upon  the  first  count ; 

(a)  There  was  some  discussion  in  in  respect  of  tlie  premiums  received ; 
the  course  of  the  artjument  as  to  the  the  grounds  of  computing  which  did 
sufficiency  of  the  sura  paid  into  court,       not  distinctly  appear.     The  defend- 


^,'):',-2  coDSAi.i.  V.   u<>i,i)Ki:o. 

;iii(l  oil  the  lliill  nl'  the  rilUSf  iK'foiu  Lord  Ellenf>oroui/h,  ('.  .1.. 
at  (iiiildlmll,  it  Wiis  ji«rit'tMl  that  a  veiditt  shouhl  Ik-  i-iitt'ivd  on 
tlif  suveial  issues,  aci'ordin^  to  tlie  dirt'ttion  of  (h«-  •  ..mi.  ..n 
the  followiuj^  ease  reserved. 

The  poliey  ineiiticiiied  in  the  deehiration  was  duly  uxuL-uitd, 
an<l  the  premiums  thereon  were  rejjuhirlv  paid.  .Mr.  I'itt. 
mentione<l  in  the  poliey,  dird  on  tin-  -^Jrd  (»t"  January,  iHOrt; 
whicli  I' vent  was  duly  certilird  in  I*VI»ruary,  ISOtl,  to  thr  trus- 
tees (»t"  the  I'eliean  Lite  Insuraiue  ('omi»any.  'I'he  defendants, 
before  Trinity  Term  last,  were  si-rved  with  process  issued  in 
this  cause  on  the  ord  of  .luiif,  1800.  Mr.  I'itt  was  indchted  to 
the  })laintitTs  at  the  time  of  the  execution  of  thi'  policy,  and 
from  thence  up  to  and  at  th«'  time  of  his  death,  alH)Ve  TjUO/., 
and  died  insolvent.  <  )n  tiie  »»th  of  March,  1M0»>,  the  exeeutoi-s 
of  Mi.  I'itt  paid  to  the  [)laintilYs,  out  of  the  money  fjranted  liy 
I'aili.iment  for  the  payment  of  Mr.  I'itt's  del)ts,  1,101»/.  lU.  «'»./., 
as  in  full  for  the  delit  due  to  them  from  Mr.  I'itt.  'I'he  case 
was  aii^MU'd  in  the  last  term  I)y 

f)'Hiipirr,  for  tlu-  plaintitTs.  who  contended  that  tlu-y  were 
entitled  to  recover  upon  this  policy  notwithstandin*^  the  piu- 
nieiit  of  the  tleht  to  them  hy  .Mi.  I'itt's  executors  out  of  the 
money  ^nanteil  l>y  Parliament  for  that  purpose.  It  is  clear 
that  a  creditor  has  an  insurable  interest  in  the  life  of  his  debtor, 
and  the  amount  of  the  debt  is  the  measure  <»f  that  interest; 
aijd  so  far  the  existence  and  lej^ality  of  the  debt(f/)  is  neces- 
sary to  the  validity  of  the  insurance  in  point  of  interest  under 
the  stat.  14  Geo.  3,  c.  48 :  but  it  is  not  the  tirhf  (pia  deht,  which 
is  insured,  but  the  life  of  the  debtor:  it  is  only  nece.s.sary  that 
the  interest  should  exist  at  the  time  of  the  instirance  made, 
ami  continue  up  to  the  time  of  the  death  of  the  debtor,  as  it 
did  in  this  case:  and  the  sum  insured  having  then  l)eeonie  due, 
and  the  debtor's  estate  insolvent,  the  fact  of  payment  of  tlie 
debt  afterwards  by  the  third  party  cannot  be  material ;  such 
payment  being  gratuitous.  The  validity  of  the  insurance 
dc})ends  upon  its  agreement  with  the  stat.  14  Geo.  3,  c.  48, 
which  was    made    to   prevent  "  insurances    on    lives  or  other 

ants'  counsel,   however,    denied   the  (n)   Dinjer  v.  Edie,  London  sittinsrs 

necessity   of    paying  anything    into  after  Ilil.  1788.     Park  on  Insnr.  sth 

court,   the   risk    having    once    com-  ed.  914;  and  2  Marsh,  on  Insur.  3rd 

menced;    and  ultimately  no  opinion  ed.  779. 
was  given  by  the  court  on  this  point. 


GODSALL   V.    BOLDERO.  1533 

events  wherein  the  assured  shall  have  no  interest;"  and  for 
this  purpose  it  enacts  (s.  1)  "  that  no  insurance  shall  be  made 
by  any  persons  on  the  life  of  any  person,  &c.,  wherein  the  per- 
sons for  whose  use,  benefit,  or  on  whose  account  such  policy 
shall  be  made,  shall  have  no  interest,  or  by  way  of  gaming  or 
wagering ; "  and  it  avoids  every  assurance  made  contrary  to 
the  true  intent  and  meaning  thereof.  The  2nd  section  pro- 
hibits the  making  any  policy  on  the  life  of  any  person  without 
inserting  in  it  the  person's  name  interested  therein.  And  the 
3rd  section  provides  that  in  all  cases  where  the  insured  hath 
interest  in  such  life,  &c.,  no  greater  sum  shall  be  recovered 
from  the  insurers  than  the  amount  or  value  of  the  interest  of 
the  insured  in  such  life,  &c.  Now  here  it  cannot  be  disputed 
but  that  all  the  requisites  of  the  act  have  been  complied  with. 
The  only  question  which  can  be  made  is  upon  the  third  section, 
as  to  the  necessity  of  the  interest  continuing  beyond  the  time 
of  the  event  happening  on  which  the  insurance  is  stipulated  to 
be  paid,  and  to  the  commencement  of  the  action.  But  the 
interest  need  only  continue  up  to  the  happening  of  the  event 
insured,  when  the  cause  of  action  arises ;  and  that  is  the  usual 
averment  in  actions  of  this  sort :  and  the  defendants  by  their 
third  plea  admit  that  it  continued  beyond  that  time ;  for  they 
allege  that  the  debt  was  paid  after  Mr.  Pitt's  death,  though 
before  the  action  commenced.  But  if  it  had  been  necessary 
that  the  interest  should  endure  up  to  the  time  of  the  action 
brought,  that  should  have  been  averred :  which  has  not  been 
usual ;  and  for  want  of  which  the  judgments  in  former  cases 
might  have  been  arrested.  The  hazard  was  run  for  which  the 
premium  was  received,  during  Mr.  Pitt's  life ;  and  as  he  died 
insolvent,  there  was  then  as  it  were  a  total  loss :  then  the 
underwriters'  liability  cannot  be  adeemed  by  the  voluntary 
payment  of  a  third  party,  though  through  the  hands  of  the 
debtor's  executors.  The  very  payment  of  the  premium  gave 
the  plaintiffs  an  interest  in  the  policy :  and  it  could  not  liave 
been  in  the  contemplation  of  the  Legislature,  when  they  granted 
the  money  for  the  payment  of  Mr.  Pitt's  debts,  to  adeem  the 
risk  of  underwriters.  In  the  case  of  insurances  against  lire, 
it  never  was  conceived  that  the  insurers  could  avail  themselves 
pro  tanto  of  charitable  donations  collected  for  tlie  benefit  of  the 
sufferers.  In  the  case  of  a  life  insurance,  the  premium  is  not 
calculated  upon  the  risk  of  the  insolvency  of  the  person  whose 


1534  (iODSALI.    V.    ItnLDKKu. 

life  is  insured,  but  solely  on  the  probability  of  the  duration  of 
tlie  life.  But,  if  the  defendant's  objection  Ije  well  founded, 
every  case  of  this  sort  will  be  resolved  into  an  examination  of 
the  assets:  of  whicii  the  insurers  will  avail  themselves  pro 
tanto^  after  havinj^  had  the  i)enelit  of  the  whole  premium;  and 
tliis  too,  at  any  distance  of  time  when  assets  may  be  forthcom- 
\\\\f  after  till-  pavmcMt  of  the  loss.  IJiit,  secondly,  by  the  pay- 
ment of  money  into  court  the  defendants  admit  a  continuani'u 
of  the  plaintiff's  interest  in  the  policy  beyond  the  amount  of 
the  bare  debt;  for  it  was  paid  in  after  the  liijuidation  of  the 
(h'l)t,  and  after  the  action  connnenced.  And  tiierefore  the 
plaintiffs  would  be  entitled  to  recover  somethinj^^.  Ami  it  does 
not  appear  how  the  premiums  received  have  U'en  rednced  to 
the  anioiiiit  piiid  into  ((nut. 

3Iarri/(if,  i-ontru,  siud  that  he  shonld  not  now  (h>pule  the  jirop- 
osition,  that  a  creditor  mit^ht  insure  the  life  of  his  dibior 
since  the  statute  ;  tii(HiL;h  it  mii^ht  have  l)ecn  (l(iid)tc(i,  at  tirst, 
wlicther  such  an  interest  as  that  in  the  life  of  another  were 
within  the  contemplation  of  the  LcL;i>latMre.  'I'here  was  an 
inception  of  the  ri>k  on  the  policy;  and  therefore  the  premium 
was  j)roperly  paid  ;  and  lu)  <juesti(*n  can  arise  on  the  amount  of 
it;  this  being  an  insurance  on  a  precise  sum,  like  a  valued  sea 
policy.  The  only  (piestiou  is,  Wiiether,  in  the  event,  the  plain- 
tiffs have  been  danuiilied,  and  can  call  upon  the  assurers  for 
any  indemnilication.  To  pursue  the  metaphor,  the  shi[)  insured 
has  been  wrecked,  but  there  has  been  a  salvage,  which  the  un- 
derwriters were  entitled  to,  and  out  of  which  the  assured  have 
been  indcnuulied  ;  lu^twithslanding  which,  they  still  claim  as 
for  a  total  loss,  contrary  to  tJie  very  nature  of  the  insurance, 
whicli  is  only  a  contract  of  indenuiity.  Adiniiting  that  the 
general  form  of  the  declaration  in  these  eases  may  have  been 
such  as  is  stated,  still  it  is  competent  for  the  underwriters  to 
show  that  a  salvage  has  been  received  b}-  the  assured  to  the 
whole  extent  of  their  loss ;  and  in  no  case  can  an  a.ssured  re- 
cover double  satisfaction,  whether  from  the  same  or  any  other 
person ;  as  in  the  case  of  a  double  insurance :  and  therefore  it 
is  immaterial  in  this  case  from  what  hand  the  first  satisfaction 
came.  This  principle  was  fully  admitted  in  the  case  of  Binf  v. 
.Randall  (rt),  where  it  was  applied  to  a  case  much  stronger  than 
the  present.     For  there  a  servant  having  entered  into  articles 

(a)  3  Burr.  1345;   1  Blac.  373,  387. 


GODSALL  V.    BOLDERO.  1535 

to  serve  his  master  for  a  certain  time  under  a  penalty,  and  the 
servant  having  left  his  service  before  the  time  by  the  procure- 
ment of  the  defendant,  this  court,  in  an  action  by  the  master  to 
recover  damages  against  the  seducer,  held  that  the  master's 
having  before  sued  the  servant,  and  recovered  the  penalty 
against  him  before  the  action  brought  against  the  seducer 
(though  in  fact  the  penalty  recovered  was  not  received  till 
after  the  second  action  commenced,  but  before  trial),  was  a  bar 
to  such  further  remedy ;  considering  the  amount  of  the  penalty 
as  ample  compensation  for  the  injury  received;  and  that  no 
further  satisfaction  could  be  received  from  any  other  quarter. 
—  (Lord  UUenborough,  C.  J.  I  never  could  entirely  comprehend 
the  ground  on  which  that  case  proceeded.  It  was  assumed 
that  the  sum  taken  as  the  penalty  from  the  servant  was  the 
extreme  limit  of  the  injury  sustained  by  the  master ;  but  there 
is  the  doubt,  for  the  penalty  might  have  been  so  limited,  be- 
cause of  the  inability  of  the  servant  to  undertake  to  pay  more ; 
and  yet  it  might  have  been  very  far  from  an  adequate  compen- 
sation to  the  master  for  the  injury  done  to  him  by  another  who 
seduced  his  servant  from  him.  I  remember,  however,  a  similar 
case  tried  at  the  sittings  in  the  Court  of  Common  Pleas,  before 
Mr.  Justice  Wilson,  sitting  for  the  Chief  Justice,  who  ruled  the 
same  point  upon  the  dry  authority  of  the  former  decision :  but, 
as  it  seemed  to  me  at  the  time,  with  considerable  doubt  upon 
his  mind  as  to  the  propriety  of  it.  —  Laivrence,  J.  I  suppose 
the  court  proceeded  upon  the  ground  that  the  penalty  was, 
by  the  express  stipulation  of  the  parties,  made  an  equivalent 
for  the  loss  of  the  service.  —  Lord  Ellenhorough.  That  is  so  as 
between  the  parties  themselves  ;  but  it  may  admit  of  doubt, 
whether  that  were  the  fair  way  of  considering  it  as  against  a 
stranger,  a  wrong-doer.)  A  voluntary  payment  of  another's 
debt,  if  accepted  as  such,  will  protect  the  debtor :  and  if  so,  it 
will  equally  protect  an  insurer  under  the  statute.  For  the  ob- 
ject of  that  was  to  prevent  wager  policies  ;  but  if  this  policy 
may  be  enforced,  notwithstanding  payment  of  the  debt,  every 
creditor  may  gamble  upon  the  life  of  his  debtor  by  way  of  in- 
surance, though  without  any  reason  to  doubt  of  his  solvency ; 
and  upon  his  death  he  would  be  entitled  to  double  satisfaction 
of  his  debt.  If  a  payment  out  of  the  debtor's  assets  would  have 
been  a  bar  to  this  action,  it  cannot  enter  into  the  merits  of  the 
case  to  inquire  by  whose  assistance  the  executors  have  been 


lo:3ti  GODSALL    V.    IJ(  )Ll>i:i:<). 

enabled  to  make  the  payment.  The  money  was  paid  hy  them, 
and  n'ceived  by  the  [)laintiffs,  as  for  the  <leht  of  Mr.  Pitt.  Then, 
'Jndly,  the  payment  of  money  into  court  on  thtr  first  eount  only 
admits  the  eontract  dcelari'il  on.  It  admits  that  the  phiinliffs 
had  an  interest  in  the  policy  up  to  the  death  of  Mr.  I'itt,  but 
not  at  the  time  of  the  action  brouj^ht:  and  where  a  demand  is 
illegal  on  the  face  of  it,  payment  of  money  into  court  does  not 
admit  it  («)•  (^t  was  afterwards  stated  by  the  court,  and 
agreed  on  all  hands,  that  the  payment  of  money  into  court  on 
the  lirst  count  only  admitted  tha  facts  stated  in  that  count.) 

Dumpier,  in  reply,  on  tiie  principal  (piestion,  said  that  the 
facts  of  the  case  showed  that  this  was  not  a  wagering  policy  ; 
but  that  the  plaintiffs  had  an  interest  in  it  up  to  the  extent  of 
the  sum  insured.  And  he  denied  that  the  snbse(pU'nt  payment 
of  the  debt  out  of  the  grant  of  parliament  was  like  the  case  of 
salvage  on  a  marine  policy  ;  for  that  w;us  an  advantage  calcu- 
lated uj)on  liy  the  underwriters  in  fixing  the  amount  of  the 
premium;  but  here  the  solvency  of  the  debtor  formed  no  basis 
of  the  calculation,  but  only  the  probable  duration  of  his  life. 
In  Bird  V.  Randall  (besides  the  doubt  of  the  soundness  of  that 
decision),  the  penalty  was  considered  as  licpiidated  daniages  to 
the  full  extent  of  the  injury  :  and  the  judgment  recovered  was 
considered  as  a  satisfaction  in  law.  If,  in  this  case,  the  plain- 
tiffs, after  recovering  judgment  against  the  underwriters,  had 
attempted  to  sue  Mr.  Pitt's  executors,  the  cases  would  have 
been  more  alike.  This  stands  as  the  case  of  a  i/ratnlfouK  pay- 
ment by  third  persons  of  the  (lel)t  of  another,  and  not  as  the 
satisfaction  of  a  legal  demand,  nor  U[)on  a  stipulation  to  receive 
it  as  satisfaction  of  the  present  claim.  It  is  most  like  the  case 
of  a  charitable  donation  to  sufferers  by  fire  who  were  partially 
insured. 

Curia  adv.  vult. 

Lord  EUenhorough,  C.  J.,  now  delivered  the  judgment  of  the 
court. 

This  was  an  action  of  debt  on  a  policy  of  insurance  on  the 
life  of  the  late  Mr.  Pitt,  effected  by  the  plaintiffs,  who  were 
creditors  of  Mr.  Pitt  for  the  sum  of  500Z.  The  defendants 
were  directors  of  the  Pelican  Life  Insurance  Compan^s  with 
whom  that  insurance  was  effected.     (His  lordship,  after  stating 

(a)   Coz  V.  Pan-y,  1  T.  R.  40+ :  and  Hibbans  v.  CriclcHt,  I  B.  &  P.  2G4. 


GODSALL    V.    BOLDERO.  1537 

the  pleadings  and  the  case,  proceeded — )  This  assurance,  as 
every  other  to  which  the  law  gives  effect  (with  the  exceptions 
only  which  are  contained  in  the  2nd  and  3rd  sections  of  the 
stat.  19  Geo.  2,  c.  27),  is  in  its  nature  a  contract  of  indemnity, 
as  distinguished  from  a  contract  by  way  of  gaming  or  wagering. 
The  interest  which  the  plaintiffs  had  in  the  life  of  Mr.  Pitt  was 
that  of  creditors ;  a  description  of  interest  which  had  been  held 
in  several  late  cases  to  be  an  insurable  one,  and  not  within  the 
prohibition  of  the  stat.  14  Geo.  3,  c.  48,  s.  1.  That  interest  de- 
pended upon  the  life  of  Mr.  Pitt,  in  respect  of  the  means,  and 
of  the  probability  of  payment  which  the  continuance  of  his  life 
afforded  to  such  creditors,  and  the  probability  of  loss  which  re- 
sulted from  his  death.  The  event  against  which  the  indemnity 
was  sought  by  this  assurance,  was  substantially  the  expected 
consequence  of  his  death  as  affecting  the  interest  of  these  indi- 
viduals assured  in  the  loss  of  their  debt.  The  action  is,  in 
point  of  law,  founded  upon  a  supposed  damnification  of  the 
plaintiffs,  occasioned  by  his  death,  existing  and  continuing  to 
exist  at  the  time  of  the  action  brought :  and  being  so  founded, 
it  follows,  of  course,  that  if,  before  the  action  was  brought,  the 
damage,  which  was  at  first  supposed  likely  to  result  to  the 
creditors  from  the  death  of  Mr.  Pitt,  were  wholly  obviated  and 
prevented  by  the  payment  of  his  debt  to  them,  the  foundation 
of  any  action  on  their  part,  on  the  ground  of  such  insurance, 
fails.  And  it  is  no  objection  to  this  answer,  that  the  fund  out 
of  which  their  debt  was  paid  did  not  (as  was  the  case  in  the 
present  instance)  originally  belong  to  the  executors,  as  a  part 
of  the  assets  of  the  deceased ;  for  though  it  were  derived  to 
them  aliunde,  the  debt  of  the  testator  w\as  equally  satisfied  by 
them  thereout;  and  the  damnifications  of  the  creditors,  in  re- 
spect of  which  their  action  upon  the  assurance  contract  is  alone 
maintainable,  was  fully  obviated  before  their  action  was  brought. 
This  is  agreeably  to  the  doctrine  of  Lord  Mansfield  in  Hamilton 
V.  Mendes,  2  Burr.  1210  (a).  The  words  of  Lord  Mansfield  are, 
"The  plaintiff's  demand  is  for  an  indemnity  :  his  action  then 
must  be  found  upon  the  nature  of  the  damnification,  as  it  really 
is  at  the  time  the  action  is  brought.  It  is  repugnant,  upon  a 
contract  for  indemnity,  to  recover  as  for  a  total  loss,  when  the 
event  had  decided  that  the  damnification  in  truth  is  an  average, 
or  perhaps  no  loss  at  all."     "  Whatever  undoes  the  damnifica- 

(a)  A  case  of  Marine  Iiisiirance. 


ir>.'}8      l)Al.l:V    V.    INDIA   AM)   l.<»Nl)(iN    lAl'V.  ASSI' I:  ANCK  CO. 

tioii  ill  tliii  whole,  or  in  piut,  iiuist  openite  upon  the  iiulemiiity 
in  tliL'  s;iine  dt'^ifu.  1 1  is  a  conliiuliction  in  terms,  t'j  hrin^'  un 
iietion  for  indeinniti/^  where,  upon  the  whole  event,  no  damaye 
has  been  sustained." 

Upon  this  j^'round,  therefore,  tliat  the  ]>laintifYs  had  in  this 
ease  no  sulwistinj^  cause  of  aetion  in  pt)int  of  law,  in  respect 
of  tlicir  contract,  rci^Mrding  it  as  a  contract  of  im/tniniti/,  at 
the  linu!  of  the  action  hroui,dit,  we  are  of  opinion  that  a  vcr- 
di(.'t  must  he  entered  for  the  defendant  on  the  lirst  and  tliird 
])leas,  notwithstandint,'  the  tindiiiLT  '"  favour  of  the  plainlitls 
on  the  second  plea. 

(Aftci"  having  In'en  treated  as  law,  not  only  in  this  coi'.ntrv, 
hut  in  the  United  States,  for  a  great  nunUter  of  years,  during 
whicli  it  w^is  freipiently  referred  to  hy  Judges  of  eminenee 
without  disapprobation,  the  ease  «»f  Godxall  v.  linhiero  has 
been  overruled  by  the  unanimous  decision  of  six  Judges  sit- 
ting in  the  Exchequer  Chamber,  in  the  case  of 

Dalisv  v.  Till;  India  and  L(»nd<»n  Likk  Assurance 
Company. 

[nr.i'oitiKi)  i.">  C-.  n.  3G5.] 

The  Judgment  was  dclivcrc<l  December  2nd,  [1854,]  by 
Baron  Parke,  and  the  facts  of  the  ciuse,  as  well  as  the  reasons 
upon  which  the  decision  proceeded,  are  fully  stated.  "  This 
case,"  said  his  lordship,  "now  comes  Iwfore  us  on  a  bill  oi  ex- 
ceptions to  the  riding  of  my  l>iother  CreifHiveU  at  Nisi  I'lins. 
We  learn  that  on  the  trial  he  reserved  the  important  point 
which  arose  in  it  for  the  consideration  of  the  Court  of  Com- 
mon Pleas;  that  when  it  came  on  for  discussion  it  was  thought 
right  to  put  it  on  the  record  in  the  shape  of  a  bill  of  exce{> 
tions,  that  it  may  be  carried,  if  it  should  be  thought  pioper, 
to  the  highest  tribunal,  and  we  have  now,  after  a  very  able 
argument  on  both  sides  to  dispose  of  it  in  this  court  of  error. 
It  is  an  action  on  what  is  usually  termed  a  policy  of  life  assur- 
ance, brought  by  the  plaintiff,  as  a  trustee  for  the  Anchor 
Assurance  Company,  upon  a  policy  for  1000/.  on  the  life  of 
his  late  Ro3-al  Highness  the  Duke  of  Cambridge.  The  Anchor 
Life  Assurance  Company  had  insured  the  duke's  life  in  four 
separate  policies  —  two   for  1000/.   and  two   for  500/.   each  — 


DALBY  V.  INDIA  AND  LONDON  LIFE  ASSURANCE  CO.      1539 

granted  by  that  company  to  a  Mr.  Wright.  In  consequence 
of  a  resolution  of  their  directors,  they  determined  to  limit  their 
insurances  to  2000^.  on  one  life ;  and  this  insurance  exceeding 
it,  they  effected  a  policy  with  the  defendants  for  lOOOL  by  way 
of  counter-insurance.  At  the  time  the  policy  was  subscribed 
by  the  defendants,  the  Anchor  Company  had  unquestionably 
an  insurable  interest  to  the  full  amount.  Afterwards  an  ar- 
rangement was  made  between  the  office  and  Mr.  Wright,  for 
the  former  to  grant  an  annuity  to  Mr.  Wright  and  his  wife, 
in  consideration  of  a  sum  of  money,  and  of  the  delivering  up 
the  four  policies  to  be  cancelled,  which  was  done ;  but  one  of 
the  directors  kept  the  present  policy  on  foot  by  the  payment 
of  the  premiums  till  the  duke's  death.  It  may  be  conceded 
for  the  pui-pose  of  the  present  argument,  that  these  transac- 
tions between  Mr.  Wright  and  the  office  totally  put  an  end 
to  that  interest  which  the  Anchor  Company  had  when  the 
policy  was  effected,  and  in  respect  of  which  it  was  effected, 
and  that  at  the  time  of  the  duke's  death,  and  up  to  the  com- 
mencement of  the  suit,  the  plaintiff  had  no  interest  whatever. 
This  raises  the  very  important  question,  whether,  under  these 
circumstances,  the  assurance  was  void,  and  nothing  could  be 
recovered  thereon.  If  the  Court  had  thought  some  interest 
at  the  time  of  the  duke's  death  was  necessary  to  make  the 
policy  valid,  the  facts  attending  the  keeping  up  of  the  policy 
would  have  undergone  further  discussion.  There  is  the  usual 
averment  in  the  declaration,  that  at  the  time  of  the  making  of 
the  policy,  and  thence  until  the  death  of  the  duke,  the  Anchor 
Assurance  Company  w\as  interested  in  the  life  of  the  duke ;  and 
a  plea  that  they  were  not  interested  '  modo  et  forma,'  which 
traverse  makes  it  unnecessary  to  prove  more  than  the  interest 
at  the  time  of  making  the  policy,  if  that  interest  was  suffi- 
cient to  make  it  valid  in  point  of  law.  {Lush  v.  Russell., 
5  Exch.  203.)  We  are  all  of  opinion  that  it  was  sufficient, 
and  but  for  the  case  of  Grodsall  v.  Boldero,  9  East,  72,  should 
have  felt  no  doubt  upon  the  question.  The  contract  com- 
monlif  called  ''life  assurance^''  when  jyroperly  considered.,  is  a 
mere  contract  to  pay  a  certain  sum  of  money  on  the  death 
of  a  person.,  in  consideration  of  the  due  payment  of  a  certain 
annuity  for  his  life.,  the  amount  of  the  annuity  being  calculated 
in  the  first  instance  according  to  the  probable  duration  of  the 
life ;    atid  tvhen  once  fixed  it  is  constant  and  invariable.       The 


1540      DALBV   V.   IN1»1A    AND  L(»Nl>itN    Lll  i:  ASSlKANt   K  (<». 

8ti[)ul;itt'<I  amount  of  annuity  is  to  Ix;  uniformly  puid  on  ono 
side,  and  the-  sum  to  Wc  paid  in  tliu  event  ofdeath  is  iilwiiys  (./x- 
cept  when  bonuses  have  heen  {,Mven  by  [nosjierous  ollices)  the 
same  on  the  other.  Tfilx  Hperiett  of  insuranre  in  no  ivaif  retnemhlea 
a  contract  of  hulcmnity.  Policies  of  assuranee  ai,'ainst  fire  and 
aj^ainst  marine  risks  are  both  pro[)erly  e«>ntraets  of  indemnity, 
the  insurer  engaging  to  make  go<»d,  within  certain  limited 
amounts,  the  losses  sustained  by  the  insured  in  their  buildings, 
siiips,  and  effects.  Policies  on  maritime  risks  were  afterwanls 
used  impi-operly,  and  made  mere  wagers  on  the  happening  of 
thosi'  perils.  This  prai-tice  was  limited  by  the  ll>  ( i.  li,  c.  :',7, 
and  put  an  end  to  in  all  except  a  few  eases;  l)ut  at  conuuon 
law,  Ix-'fore  this  statute  with  respect  to  maritime  risks,  and  the 
14  CJ.  3,  c.  48,  lus  to  insurances  on  lives,  it  is  perfectly  clear  that 
all  contracts  for  wager  i)olicies  ami  wagers  which  were  not 
contrary  to  the  i)olicy  of  the  law  were  legal  contracts;  and  so 
it  is  stated  by  the  court  in  i'ouxinx  v.  Xnntcx  (3  Taunt.  31.')),  to 
have  been  solenudy  determined  in  the  case  of  Lucena  v.  Vrau- 
fimJ  (2  P.os.  i^  I*.  3-J4,  '1  X.  \{.  'liW^),  without  even  a  difference 
of  o[)inion  among  all  the  judges.  To  the  like  effect  was  the 
decision  of  the  court  of  error  in  Ireland,  l)efore  all  the  judges 
except  three,  in  The  British  Inxuntfur  Co.  v.  Matfcc  (1  Cooke  A: 
Ale.  iSii),  that  the  assurance  was  legal  at  common  law.  Their 
contract,  therefore,  in  this  case  to  pa}-  a  tixcd  sum  of  lOOO/.  on 
the  death  of  the  late  Duke  of  C'andiridgc  wtiuld  have  bei-n  un- 
questionably legal  at  common  law,  if  the  plaintitY  had  had  an 
interest  thereon  or  not;  and  the  sole  «iuestion  is,  whether  this 
policy  was  rendered  illegal  and  void  by  the  provisions  of  the 
stat.  14  G.  3,  e.  48.  This  depends  upon  its  true  constructit)n. 
The  statute  recites  that  the  making  insurances  on  lives  and 
other  events,  wherein  the  insured  shall  have  no  interest,  hath 
introduced  a  mischievous  kind  of  gaming,  and  for  the  remedy 
thereof  it  enacts  '*  that  no  insurance  shal/  /»•  mmle  by  any  one 
on  the  life  or  lives  of  any  person  or  persons,  or  on  any  other 
events  whatsoever,  wherein  the  person  or  persons  for  whose  use 
and  benetit  or  on  whose  account  such  policy  shall  be  made  itJiall 
have  no  interest,  or  by  way  of  gaming  and  wagering ;  and  that 
every  assurance  made  contrary  to  the  true  intent  and  meaning 
thereof,  shall  be  null  and  void,  to  all  intents  and  purposes 
whatsoever."  As  the  Anchor  Assurance  Company  had  unques- 
tionablv  an  interest  in  the  continuance  of  the  life  of  the  Duke 


DALBY  V.  INDIA  AND  LONDON  LIFE  ASSURANCE  CO.      1541 

of  Cambridge,  and  that  to  the  amount  of  1000/.,  because  they 
had  bound  themselves  to  pa}^  a  sum  of  1000/.  to  Mr.  Wright  on 
that  event,  the  policy  effected  by  them  with  the  defendants 
was  certainly  legal  and  valid,  and  the  plaintiff,  without  the 
slightest  doubt,  could  have  recovered  the  full  amount  if  there 
were  no  other  provision  in  the  act.  The  contract  is  good  at 
common  law,  and  certainly  not  avoided  by  the  1st  section  of 
the  14  G.  3,  c.  48.  This  section,  it  is  to  be  observed,  does  not 
provide  for  any  particular  amount  of  interest.  According  to 
it,  if  there  was  any  interest,  however  small,  the  policy  would 
not  be  avoided.  The  question  arises  on  the  3rd  clause  ;  it  is  as 
follows  :  —  "  And  be  it  further  enacted,  that  in  all  cases  where 
the  insured  hath  interest  in  such  life  or  lives,  event  or  events, 
no  greater  sum  shall  be  recovered  or  received  from  the  insurer 
or  insurers  than  the  amount  or  value  of  the  interest  of  the 
assured  in  such  life  or  lives,  or  other  event  or  events."  Now, 
what  is  the  meaning  of  this  provision?  On  the  part  of  the 
plaintiff  it  is  said  it  means  only  that  in  all  cases  in  which  the 
party  insuring  has  an  interest  when  he  effects  the  policy,  his 
right  to  recover  and  receive  is  to  be  limited  to  that  amount ; 
otherwise,  under  colour  of  a  small  interest,  a  wagering  policy 
might  be  made  to  a  large  amount,  as  it  might  if  the  1st  clause 
stood  alone.  The  right  to  recover,  therefore,  is  limited  to  the 
amount  of  the  interest  at  the  time  of  effecting  the  policy ;  upon 
that  value  the  assured  must  have  the  amount  of  premium  cal- 
culated ;  if  he  states  it  truly,  no  difficulty  can  occur ;  he  pays, 
in  the  annuity  for  life,  the  fair  value  of  the  sum  payable  at 
death.  If  he  misrepresents  by  overrating  the  value  of  the  in- 
terests, it  is  his  own  fault  in  paying  more  in  the  way  of  annuity 
than  he  ought,  and  he  can  recover  only  the  true  value  of  the 
interest  in  respect  of  which  he  effected  the  policy,  but  that 
value  he  can  recover.  Thus  the  liability  of  the  assurer  be- 
comes constant  and  uniform,  to  pay  an  unvarying  sum  on  the 
death  of  the  cestui  que  vie,  in  consideration  of  an  unvarying  and 
uniform  premium  paid  by  the  assured.  The  bargain  is  fixed  as 
to  amount  on  both  sides.  This  construction  is  effected  by  read- 
ing the  word  '  hath '  as  referring  to  the  time  of  effecting  the 
policy.  By  the  1st  section  the  assured  is  prohibited  from  effect- 
ing an  insurance  on  a  life,  or  on  an  event  wherein  he  '  shall 
have  '  no  interest  —  that  is,  at  the  time  of  assuring ;  and  then 
the  3rd  section  requires  that  he  shall  recover  only  the  interest 


l'>42      DALBY  V.  INDIA  AND  LONDON   LIIK  ASSUl:AN<E  CO. 

tliat  lit'  'liiilh';  if  lir  li  is  ;iii  interest  when  the  policy  is  nisidt, 
he  is  not  \v.i:;ii  int;  or  f,Mniiii^',  iind  the  prohihition  of  the  statnto 
(loos  not  apply  to  his  ease.  Had  the  'hd  section  proviiled  that 
no  Miore  tiian  the  amount  or  value  of  the  interest  should  Im-  in- 
sured, a  (piestion  niii^ht  have  l)een  raisetl,  whether,  if  the  insur- 
ance had  heen  for  a  larfjcr  amount,  the  whole  would  not  have 
been  void;  but  the  prohibition  to  recover  or  receive  more  than 
that  amount  obviates  any  dillicnlty  on  that  head.  On  the  other 
hantl,  the  defendants  contend  that  the  meaninj^  of  this  clau.se 
is.  that  the  assured  shall  recover  no  more  than  tiie  value  of  the 
interest  which  he  has  at  tlie  time  of  the  recovery,  or  receive 
more  than  its  value  at  the  time  of  the  receipt.  The  words  must 
be  altered  materially  to  limit  the  sum  to  l)e  recovered  to  the 
value  '//  the  time  of  the  death,  or  if  payable  at  a  time  after  death, 
when  tlic  cause  of  action  accrues.  Hut  there  is  the  most 
serious  objection  to  any  of  these  constructions.  It  is,  that  the 
written  contract,  which,  for  the  reasons  jjiveii  Ufore,  is  not  a 
wafjerin^  contra(;t,  but  a  valid  one,  permitted  by  tlie  statute, 
and  very  clear  in  its  langua<^e,  is  by  this  moih^  of  i-onstruction 
completely  altered  in  its  terms  and  elYei  t.  It  is  no  lonj,a'r  a 
contract  to  pay  a  certain  sum  as  the  value  of  a  then  existing 
interest  in  the  event  of  death,  in  consideration  of  a  fixed  annu- 
ity, calculated  with  reference  to  that  sum,  but  a  contract  to  pay, 
contrary  to  its  express  words,  a  varying  sum,  according  to  tli  ■ 
alteration  of  the  value  of  that  interest  at  the  time  of  the  death 
or  the  accrual  of  the  cause  of  action,  or  tin-  time*  of  the  verdict 
or  execution,  and  yet  the  price  or  the  [»remiuni  to  Ih-  paid  is 
fixed,  calculated  on  the  original  fixed  value,  and  is  unvarying, 
so  that  the  assured  is  obliged  to  pay  a  certain  [jremium  every 
year,  calculated  on  the  value  of  his  interest  at  the  time  of  the 
policy,  in  order  to  have  a  right  to  recover  an  uncertain  sum, 
namely,  that  which  ha[)pens  to  be  the  value  of  the  interest  at 
the  time  of  the  death  or  afterwards,  or  at  the  time  of  the  ver- 
dict. He  has  not,  therefore,  a  sum  certain,  which  he  stipulated 
for  and  bought  with  a  certain  annuity  ;  but  it  may  be  a  much 
less  sum,  or  even  none  at  all.  This  seems  to  us  so  contrary  to 
justice  and  fair  dealing  and  common  honesty,  that  this  con- 
struction cannot,  we  think,  be  put  upon  the  section.  We 
should  therefore  have  no  hesitation,  if  the  question  were  res 
Integra,  in  putting  the  much  more  reasonable  construction  on 
the  statute,  that  if  there  is  an  interest  at  the  time  of  the  policy 


DALBY  V.  INDIA  AND  LONDON  LIFE  ASSURANCE  CO.      1543 

it  is  not  a  wagering  policy,  and  that  the  trne  value  of  that  in- 
terest may  be  recovered,  in  exact  conformity  with  the  words  of 
the  contract  itself.  The  only  effect  of  the  statute  is  to  make 
the  assured  A'alue  his  interest  at  its  true  amount  when  he 
makes  the  contract.  But  it  is  said  that  the  case  of  Gochall  v. 
Boldero,  9  East,  72,  has  concluded  the  question.  Upon  consid- 
ering this  case,  it  is  certain  that  Lord  Ellenhorough  decided  it 
upon  the  assumption  that  a  life  policy  was  in  its  nature  a  con- 
tract of  indemnity,  as  policies  on  marine  risks  and  against  fire 
undoubtedly  are;,  and  that  the  action  was,  in  point  of  law, 
founded  on  the  supposed  damnification  occasioned  by  the  death 
of  the  debtor  existing  at  the  time  of  the  action  brought,  and  his 
lordship  relied  upon  the  decision  of  Lord  Mansfield  in  Hamilton 
V.  Mendes  (2  Burr.  1270),  that  the  plaintiff's  demand  was  for 
an  indemnity  only.  Lord  Mansfield  was  speaking  of  a  policy 
against  marine  risks,  which  is  in  its  terms  a  contract  for  in- 
demnity only.  But  that  is  not  the  nature  of  what  is  termed  an 
assurance  for  life ;  it  really  is  what  it  is  on  the  face  of  it  —  a 
contract  to  pay  a  certain  sum  in  the  event  of  death  ;  it  is  valid 
at  common  law,  and,  if  it  is  made  by  a  person  having  an  inter- 
est in  the  duration  of  the  life,  is  not  prohibited  by  the  stat.  14  G. 
3,  c.  48.  But  though  we  are  quite  satisfied  that  the  case  of 
G-odsall  V.  Boldero  was  founded  on  a  mistaken  analogy,  and 
wrong,  we  should  hesitate  to  overrule  it,  though  sitting  in  a 
court  of  error,  if  it  had  been  constantly  approved  and  followed, 
and  not  questioned,  though  many  opportunities  had  been  of- 
fered to  question  it.  It  was  stated  that  it  had  not  been  dis- 
puted in  practice,  and  had  been  cited  by  several  eminent 
judges  as  established  law.  The  judgment  itself  was  not  and 
could  not  be  questioned  in  a  court  of  error,  for  one  of  the 
issues,  nil  debet.,  was  found  for  the  defendant.  Since  that  case 
we  know  practically — and  that  circumstance  is  mentioned  by 
some  of  the  judges  in  the  cases  hereafter  referred  to  —  that  the 
insurance  offices,  generally  speaking,  have  not  availed  them- 
selves of  the  decision,  as  they  found  it  very  injurious  to  their 
interests  to  do  so ;  they  have,  therefore,  generall}^  speaking, 
paid  the  amount  of  their  life  insurances,  so  that  the  number  of 
cases  in  which  it  could  be  questioned  is  probably  very  small 
indeed  ;  and  it  may  be  truly  said,  that  instead  of  the  decision 
in  Godsall  v.  Boldero  being  uniformly  acquiesced  in  and  acted 
upon,  it  has  been  uniformly  disregarded.     Then  as  to  the  cases, 


l')44       DAI.HV   V.   INDIA     \N!'   I  mM..i\    MKK  ASSI'KAN'  I"  <". 

there  is  no  oiise  at  law  except  that  of  liarfif'r  v.  M>iniM  (1  Moo. 
&  li.  02),  ill  wliich  the  cixse  of  GoJsall  v.  BoiUrn  waa  inci- 
dentally Jioticed  as  proving  it  to  l)e  necessary  that  the  interest 
slionld  continue  till  the  deatli  of  the  cestui  que  vie.  It  was 
j)roved  in  that  case  to  he  tlje  practice  of  the  j)articular  ollice  in 
which  that  assurance  was  made,  to  pay  the  sums  assured  with- 
out iiKiuiry  as  in  the  existenee  of  an  insurahle  interest;  and  on 
that  account  it  was  held  that  the  policy,  thougii  in  that  disc 
the  interest  had  ceased,  was  a  valual)lc  policy,  and  the  plaintiff 
could  not  recover  on  the  ground  that  the  defendant,  the  vendor 
of  it,  was  guilty  of  fraudulent  concealment  in  not  ilisclosing 
that  the  interest  had  ceased.  This  was  the  [)oint  of  the  case  ; 
and  though  there  was  a  dictum  of  Lord  Tcntenlen  that  the  pay- 
ment of  the  sum  insured  could  not  he  enforced,  it  was  not  at 
all  necessary  to  the  decision  of  the  ease.  The  other  cases  cited 
on  the  argument  in  this  case  were  cases  in  equity,  where  the 
propriety  of  the  decision  of  Goihall  v.  liohlero  did  not  come  in 
question.  'I'lu^  (jucstions  arose  as  to  the  right  of  the  creditor 
and  dchtor  inter  xe^  where  the  olVices  have  paid  the  value  of  a 
policy,  in  Humphreii  v.  Arahin,  2  Lloy«l  Jt  Goold,  ^^^X  :  I[ennon 
V.  Bhtrhwell  4  Hare,  4:U,  ccr.  Sir  J.  \vigram,  V.  ('.;  Phi/lips 
V.  Eastivooil,  1  Lloyd  and  (Joold  ((';is.  temp.  Sugd.),  281 — - 
where  the  point  decided  was,  that  a  life  policy,  as  a  security  for 
a  deht,  passed  under  a  will  becpieathing  dehta,  the  Lord  Chan- 
cellor stating  that  the  offices  found  it  not  for  their  benefit  to 
act  on  the  rigid  rule  of  Godxall  v.  Bolih-m.  \\\  these  cases  the 
different  judges  concerned  in  them  do  not  dispute,  some  indeed 
appear  to  ajjprove  of,  the  case  of  Gmisall  v.  Bohlera ;  hut  it  was 
not  material  in  any  to  controvert  it,  an<l  the  (piestions  to  Ix^ 
decided  were  quite  independent  of  the  authority  of  that  case. 
We  do  not  thiid<  we  ought  to  feel  ourselves  boun<l,  sitting  in  a 
court  of  error,  by  the  authority  of  this  case  which  itself  could 
not  be  questioned  by  writ  of  error,  and  as  so  few,  if  any,  subse- 
quent cases  have  arisen  in  which  the  soundness  of  the  princi})le 
there  relied  upon  could  be  made  the  subject  of  judicial  inquiry ; 
and  as  in  practice,  it  may  be  said  that  it  has  been  constantly 
disregarded.  Judgment  reversed,  and  a  venire  de  7iovo.^'  — 
Judfiment  accord inr/li/. 

It  will  thus  be  seen  that  the  point  decided  in  G-odsall  v.  Bol- 
dero  has  been  distinctly  overruled  (a),  and  that  the  continu- 

(a)   [See  also  Law  v.  The  Indisputable  Life  Policy  Co.,  24  Law  J.  Chan.  196, 
coram  Wood,  V.  C.] 


DALBY  V.  INDIA  AND  LONDON  LIFE  ASSURANCE  CO.      1545 

ance  of  any  portion  of  the  interest  required  by  the  statute  when 
the  policy  is  effected,  is  no  longer  necessary;  as,  however,  the 
greater  part  of  the  following  note  is  unaffected  by  this  decision, 
it  is  preserved  with  such  alterations  as  the  present  state  of  the 
law  renders  necessary. 

INSURANCE,  whether  of  ships,  or  against  Are,  is  a  contract  of  indemnity, 
and  whenever  aa  attempt  is  made  to  make  it  answer  any  other  purpose,  such 
an  attempt  tends  to  divert  it  from  its  original  and  legitimate  o^Dect  whic 
renders  it  the  more  extraordinary  that  contracts  so  plainly  wresting  it  fiom 
its  proper  sphere  as  interest  or  no  interest  policies,  should  ever  have  been  rec- 

"""That^  ^liowever,  they  were  so,  is  certain;  though  they  were  so  far  dis- 
couraged as  inconsistent  with  sound  principle,  that,  unless  a  Pol^cy  was 
expressly  stated  to  be  made  interest  or  no  interest,  it  was  understood  that  the 
insured  was  interested,  and  he  was,  in  c«se  of  loss,  boiind  to  prove  _i  See 
Lucena  v.  Crawford,  3  B.  &  P.  101;  Scullers^  Co.  v.  Badcock,  2  Atk.  o56  In 
Ireland,  where  [until  the  passing  of  the  29  &  30  Vict.  c.  42,  -PP^J-^f*^  In- 
land the  provisions  of  the  14  G.  3,  c.  48]  there  was  no  [similar]  statute  n 
force,  interest  or  no  interest  policies  on  lives  were  valid,  and  where  the  poll  y 
was  silent  as  to  interest  or  no  interest,  the  Court  of  Exchequer  Chamber  held 
that  the  declaration  need  not  contain  any  distinct  averment  of  interest. 
BrUisk  Insurance  Company  v.  Magee,  1  Cooke  &  Alcock-s  ^^P^^'t^-   ;^:- 

However  wager  policies,  as  they  are  called,  are  now  forbidden  to  be  made 
on  [British]  ships,  [or  on  profits  on  goods  or  effects  laden  on  bo^-d  ^see 
SmitU  .Reynolds    I  H.  .  N   221 ;  ^f^-^^^'^^^^^,  1^.^'  ^'L 
ridge  v.  Man  On  Insurance  Co.,  18  Q.  L.  D.  rf-ib,jj  uy  lo  yy      , 
other  matters  by  14  G.  3,  cap.  48,  which  enacts,  "  that  no  ^-^^^f^^ 
made  by  any  person  or  persons,  bodies  politic  or  corporate,  on  the  life  o,  lives 
7 anvotnl  person  or  persons,  or  on  any  other  event  or  events  whatsoever 
Icn^n  the  person  or  persons  for  whose  use,  benefit,  or  on  whose  accoun 
such  policies  shall  be  made,  shall  have  no  interest,  or  by  way  of  gaming  oi 
waoering;  and  every  insurance  made  contrary  to  the  true  intent  and  meaning 
hei^.of  shall  be  null  and  void  to  all  intents  and  purposes." 

Bv  sect.  2,  the  name  of  the  person  interested  therein,  or  for  whose  use 
benefit  or  on  whose  account  the  policy  was  made,  is  to  be  inserted  m  it. 
[The  name  must  be  inserted  as  that  of  the  person  interested;  andno  distinc- 
tion is  made  in  this  respect  by  the  statute  between  ordinary  policies  on  lives 
and  gaming  or  wagering  policies.  Hcxlson  v.  The  Observer  Assrirance  Co.,  8 
TT     ^    R    40  1 

By  sect.'3,  in  all  cases  where  the  insured  had  an  interest  in  the  life  or  lives, 

event  or  events,  no  greater  sum  shall  be  ^-^^-^^''^J;' I'^Z'TZZ 
insurer  or  insurers]  than  the  value  of  that  interest  at  the  date  of  the  policy. 
[Ilebdon  v.  West,  3  B.  &  S.  ."9.] 

Bv  sect  4,  marine  insurances  are  exempted  from  the  operation  of  this  lat 
ter  act;  and  as  the  act  19  G.  2,  c.  37,  which  governs  them,  does  not  require 
the  name  of  the  person  really  interested  to  be  inserted  in  a  -^^^l^ff^ 
is  not  necessarv  that  it  should  be  so  [except  as  provided  by  -8  Geo.  ..  c^50, 
which  enacts  that  no  policy  shall  be  made  on  any  ship  or  "PO'^;^"^  g°°^^^; 
without  inserting  the  name  of  one  or  more  of  the  persons  mterested,  or 


lo4tJ  (ioDSALL    \.    15<>LI>KK(). 

Jnstcad  tlierc;)f  of  tho  coiisi^'iior,  ofdislgnoo,  or  of  tin-  iMr>*<)ii  wlio  nnivcd 
or  <invc  tlif  order  to  ellcft  tin-  iiisiinmcf.] 

Tliis  act  doi's  not  extt-nd  to  prevent  individuals  from  etlVitinK  lnsuraii<i-.s 
iijion  thrir  oicn  liccs,  provitled  tliat  Ik-  done  li',uu  Jul' .  But  It  seems  that  a 
man  would  not  be  permitted  to  evade  the  statute  by  proeurinij;  one  in  whose 
life  he  had  no  leyal  interest  to  insure  It  with  his  money  and  for  his  iH-netlt, 
thoujjfli  ostensibly  for  the  advantaire  of  the  party  Insurlnu.  Wiihtirriijht  v. 
Jilawl,  1  M.  &  U(»b.  481;  1  M.  &  W.  .{2.  Still  it  has  been  held  that,  w  here  a 
life  (tolicy  is  assiijncd,  it  is  not  necessary  that  the  assl^jnee  should  have  any 
interest,  or  even  that  he  should  have  paid  any  consideration ;  for  he  stands 
upon  tlie  rights  of  the  party  who  ellected  the  insuranii-,  and  the  statute  oidy 
applies  to  tlie  orif^inal  parties  to  the  policies,  not  to  tlifir  assii;nees.  AnhUy 
v.  Asfih'i/,  ;J  Simons,  \VJ. 

The  statute  does  not  apply,  as  has  been  seen,  merely  to  life  policies,  but  t.) 
policies  "  on  nmj  other  went  or  events  irhutsoerer."  And  so  sweepiuf;  are  these 
words,  that  it  is  perhaps  not  very  easy  to  say  precisely  wliat  tles«-rlption  of 
wa^'er,  if  redu<-ed  to  writing,  niljrht  not  be  invalidated  by  them.  In  l:n»huck 
V.  Ilitmerton,  Cowp.  7:57,  (which  wiu*  the  first  case  decided  on  this  statute), 
the  defendant,  in  consideration  of  a  certain  sum,  undertook  to  pay  the  plain- 
tiff a  jrreater  smu.  in  case  MouHiiur  /-■  ('Uinilur  D'Emi  shoidti  at  any  time 
l)rove  to  be  a  femnh-.  At  the  trial  the  point  was  reserve«I,  wln-ther  this 
waijer  was  prohibited  by  st.  14  (1.  3,  cap.  48,  and  the  court  held  that  it  was 
so.  It  must  be  observed,  that  in  this  case  the  wa«er  was  drawn  up  in  the 
form  of  a  policy,  and  was  indorsed  as  one,  and  opened  to  any  lunnber  of  p<-r- 
sons  whf)  pleased  t<i  subscribe. 

In  Pritrrsnn  v.  PoinU,  9  Rinir.  320,  the  declaration  was  upon  tlie  followinj; 
instrument :  — 

In  consitleration  of  forty  truineas  for  100/.,  and  ai-cordinir  to  that  rate,  for 
every  greater  or  less  sum  received  of  ,  we,  whose  names  are  hereunto 

sui)scribed,  ilo,  for  ourselves  severally,  an<l  our  several  and  respective  heirs, 
executors,  administrators,  and  assigns,  :uul  not  one  for  tlie  otln-r  or  others 
of  us,  or  for  tlie  heirs,  executors,  &c.,  of  the  otlier  or  others  of  us.  assume 
and  promise,  tliat  we  respectively,  or  our  respective  heirs,  executors,  &c., 
shall  pay  or  cause  to  be  paid  to  the  said  ,  the  sum  or  sums  of 

money  which  we  have  hereunto  respectively  siil)scril)ed,  without  any  abate- 
ment whatever;  in  case  the  Imperial  Brazilian  Mining  shares  be  done  at  or 
above  100/.  per  share  on  or  before  the  ^\st  day  of  I)ecend)er,  1»2». 
100/.  James  Powell,  Due  hundred  pounds, 

2!)th  April.  1829. 
100/.  Henry  Hodges,  do. 

100/.  A.  P.  Johnson  do." 

The  court  held  this  instrument  void,  as  a  policy  prohibited  by  the  statute. 
The  Lord  Chief  Justice  remarked,  "that  it  had  been  contended  that  the 
words  of  the  act  were  confined  to  cases  where  there  was  a  snlijcct-iudtter  of 
insurance  exposed  to  peril ;  but  that  that  argument  was  inconsistent  with  the 
words  amj  event  or  events  irhatsoever:"  and  his  lordship  cited,  on  that  subject, 
the  case  of  Mollisnn  v.  Staples,  Park  on  Ins.,  8th  ed.  OOit,  where  a  policy  on 
the  event  of  there  being  an  open  trade  between  Great  Britain  and  Maryland 
on  or  before  July  G,  1778,  was  held  void  by  Lord  Mansfield.  "  Our  decision," 
continued  his  lordship,  "  therefore,  must  turn  upon  tho  provisions  of  the  14 
G.  8.  if  this  instrument  ran  ho  denned  a  pnlinj.  Upon  that  point  we  entertain 
no  doubt.     Here  is  a  premium  paid,  in  consideration  of  the  insurers  incurring 


DALBY  V.  INDIA  AND  LONDON  LIFE  ASSURANCE  CO.      1547 

the  risk  of  paying  a  larger  sum  upon  a  given  contingency.  Tlae  instrument 
is  open  to  all  who  may  choose  to  subscribe,  that  is,  without  restriction  of 
persons  or  numbers.  It  tlien  proceeds,  in  the  usual  language  of  policies  of 
insurance — ••  We  respectively  will  pay,  or  cause  to  be  paid,  to  the 

sum  and  sums  of  money  wliich  we  have  hereunto  respectively  subscribed, 
without  any  abatement  whatever,  in  case,'  &c.  If  the  instrument  in  Roebuck 
V.  Hamerton  Avas  rightly  held  to  be  a  policy,  I  can  make  no  just  discrimina- 
tion between  that  Instrument  and  the  present.  It  is  true,  that  the  policy  con- 
tains no  clause  about  average,  because  the  circumstances  of  the  risk  do  not 
require  it.  But,  if  the  instrument  can  be  deemed  a  policy  without  that 
clause,  we  shovild  impair  the  efficacy  of  the  act  of  parliament,  if  we  were  to 
consider  it  as  an  ordinary  contract.  I  cannot  consider  it  as  other  than  a 
policy,  and,  if  so,  the  plaintifl''s  claim  must  receive  tlie  same  answer  as  was 
given  by  Lord  Mansfield  in  Roebuck  v.  Hamerton ;  first,  that  this  is  an  insur- 
ance on  an  event  in  which  the  party  had  no  interest :  or,  if  he  had,  the  policy 
does  not  disclose  the  name  of  any  party  interested." 

[A  contract  by  which  an  expected  devise  from  a  third  person  is  assigned, 
in  consideration  of  an  advance  of  money  to  be  repaid  if  the  devise  does  not 
take  place,  does  not  amount  to  a  wagering  policy  within  the  statute.  See 
Cook  V.  Field,  15  Q.  B.  460.] 

On  the  other  hand,  it  is  too  late  to  contend  that  there  might  not  be  many 
legal  wagers,  [altliough,  as  will  be  seen  hereafter,  the  stat.  8  &  9  Vict.  c.  109, 
s.  18,  renders  them,  with  certain  exceptions,  incapable  of  being  enfoi-ced]. 
And  there  are  instances  in  which  the  courts  have  refused  to  apply  to  such 
the  provisions  of  the  statute  in  question;  thus,  in  Good  v.  Elliott,  3  T.  R. 
693,  the  action  was  upon  a  wager  between  the  plaintiff  and  defendant, 
whether  Susannah  Tye  had  bought  a  certain  waggon  from  David  Coleman. 
The  declaration  stated  the  nature  of  the  transaction;  and,  after  verdict  for 
the  plaintiff,  a  rule  nisi  was  obtained  to  arrest  jndgment,  but  was  discharged 
by  the  court  (dissentiente  BuUer,  J.)  after  an  elaborate  discussion  of  the  entire 
subject.  The  majority  of  the  judges  relied  upon  several  decided  cases,  as 
proving  that  all  wagers  were  not  necessarily  void  at  common  law,  but  only 
those  which,  by  injuring  a  third  person,  disturb  the  peace  of  society,  or 
which  militate  against  the  morality  or  sound  policy  of  the  kingdom;  and 
they  remarked,  that  had  the  law  been  otherwise,  there  would  have  been  no 
occasion  for  passing  stat.  14  G.  3,  at  all.  They  then  proceeded  to  consider 
the  question,  whether  the  transaction  was  invalidated  by  that  statute,  and 
concluded  that  it  was  not. 

"  The  statute,"  said  Mr.  J.  Grose,  "evidently  meant  that  every  insurance 
on  lives,  or  on  any  event,  in  which  the  assured  lias  not  an  interest,  shall  be 
void,  xchetlier  such  insurance  be  effected  in  the  form  of  a  policy,  or  by  icay  of 
gaming  or  icagering.  And  if  the  construction  contended  for  by  the  defendant 
be  the  true  one,  it  leads  to  this  extraordinary  proposition,  vis.,  that  a  statute 
which  concerns  every  part  of  the  community,  and  was  passed  in  1774,  has 
never  been  understood  by  any  one  till  1790.  To  say  that  every  wager  is  pro- 
hibited by  this  statute,  is  to  say,  that  every  wager  is  an  insurance ;  and  that 
the  parliament  meant  to  describe  a  wager  by  calling  it  an  insurance;  which 
I  am  of  opinion  was  not  their  intent." 

Lord  Kenyon,  in  his  judgment,  further  remarked,  that  it  was  apparent  that 
the  legislature  had  vjritten  instruments  only  in  contemplation,  by  requiring 
the  names  of  the  parties  interested  to  be  inserted  therein. 

It  will  be  observed,  that  the  majority  of  the  judges  in  Good  v.  Elliott,  seem 


1548  GODSALI.    V.    IJOLDEUO. 

to  have  consklerotl  the  disthiction  hi-twocn  cases  withhi,  aiul  cases  not  within, 
the  nieaiiiiij;  of  the  statute,  to  consist  ratlier  in  the  imlure  of  the  ri»k  timn  ia 
tlie  form  (proviiied  it  l)e  written)  of  tlie  contract.  Indeed,  tlie  construction 
put  upon  tlie  act  l)y  (Jrose,  J.,  is  irreconcileal)le  with  any  otlier  view,  for  Ids 
lordship,  conunentinj;  on  the  statute,  says  (as  is  above  citetl),  •'  The  statute 
meant,  that  every  insurunre  on  lives,  or  nn  any  vnnt.  In  widch  the  assured 
had  not  an  interest  should  be  void,  tr/iflhrr  auch  insitraiic*-  he  iffntnl  in  thr 
form  of  a  poluij,  or  h>j  trny  of  )/<imiiiij  or  icagerimj ;"  numifestly  Intending  to 
express  his  opinion,  that  there  were  two  ways  of  etlectiuK  an  Insurance,  the 
one  in  thr  form  of  a  polin/,  tlie  other  hij  imy  af  i/nmiiii/  or  irmjirimj  —  tluit  is,  i« 
the  form  of  u  hct ;  but  that,  whichever  way  was  adopteil,  the  insurance  woidd 
equally  be  void,  if  tlie  insured  hail  no  interest  in  the  sniiject-matter  of  Insur- 
ance. And  certainly  that  construction  of  the  a<t  appears  rational;  and  there 
may  be  souiethiut?  u«)t  quite  in  acconlauce  witli  couinioii  si-nse.  in  saying  that 
a  statute  proliibitinj;  a  contract  can  l)e  evaded  by  shapiiiy  the  contract  in  t)ne 
form  rather  than  another. 

Now,  if  tliat  construction  of  the  statute  be  the  true  one,  and  if  insurances 
be  void,  thoufjh  in  the  form  of  iragera  not  of  poUcifs,  tlie  next  question  will 
be  —  wfidt  WKijfru  are,  in  nature  ami  in  substanvi',  inaurancrs,  an  contradiKtin- 
guished  from  mere  hetsf  and  this  ijuestion,  too,  seems  to  be  answered  by  Mr. 
J.  Grose,  who,  usinj;  the  very  words  of  the  statute  says,  that  it  evidently  in- 
tended insurances  upon  events.  Now  an  event  —  that  which  will  ereutually 
happen  {evenire),  .seems  to  include  the  uncertain  —  uncertain,  because  future 
—  issue  of  any  transaction  whatever.  To  ;;ive  the  woril  event  useil  in  the  act, 
that  sense,  and  to  construe  every  wajjer  un  an  event  to  be  a  polieij,  wmild 
have  the  effect  of  dividin;;  all  written  iragerit  into  two  clas.ses  :  —  I.  \V«:;<'rs 
upon  questions  capable  of  solution  in  pra-aenti.  —  Wafers  upon  (|uestions  in- 
capable of  solution  in  pnrnenli.  or  events.  For  instance,  under  the  former 
class  would  fall  a  wager  whether  a  particular  horse  Is  black  or  white,  since 
the  colour  of  the  horse  is  an  existing  fact;  under  the  second  class,  a  wager, 
whether  the  foal  a  mare  now  goes  with  irill  be  black  or  white,  as  that  is  a 
wager  upon  an  event. 

And  if  such  really  were  the  distinction  between  cases  comprised  and  those 
not  comprised  by  tlie  statute,  it  would  be  a  very  thin  one  indeed ;  for.  after 
all,  if  two  men  lay  a  bet  upon  a  matter,  the  truth  of  which  is  presently  ascer- 
tainable, although  the  thing  either  is  or  is  not,  as  is  asserted,  and  therefore 
its  status  cannot,  with  reference  to  the  general  nature  of  things,  be  an  event, 
still,  as  the  bettors  are  themselves  uncertain  how  the  truth  will  upon  exand- 
nation  be  discovered  to  be,  their  discovery  of  the  true  state  of  things  is  an 
event,  although  the  thing  discovered  itself  is  not.  And  the  distinction  would 
indeed  be  a  tine  one,  which  should  consist  in  the  difference  between  a  wager 
on  a  future  thing,  and  a  wager  on  the  future  discovery  of  an  existing  tiling. 

But,  without  adopting  this  distinction,  it  is  impossible  to  escape  from  the 
conclusion,  that  the  application  of  the  act  is  to  those  mitten  contracts  only  ichich 
are  in  the  form  of  policies :  or,  to  yo  a  little  further,  that,  if  it  do  apply  to  any 
other  contracts,  it  at  all  events  applies  only  to  .<tMcA  as  are  ordinarily,  and  in  the 
common  course  of  business,  made  by  toay  of  policy,  though  the  parties  may  for  the 
purpose  of  evading  the  statute,  have  framed  them  in  the  shape  of  irajfers.  That  the 
class  of  cases  comprehended  within  the  latter  part  of  the  above  proposition, 
should  he  witliin  the  provisions  of  the  act.  seems  but  reasonable.  For  the 
former  part  of  the  proposition  there  is  great  authority. 

And  first,  there  is  authority  to  prove  that  all  wagers,  if  conceived  in  the  form 


■         DALBY  V.  INDIA  AND  LONDON  LIFE  ASSURANCE  CO.     1549 

of  nolicies   are  within  the  statute.     In  Roebuck  v.  Hamerton,  the  .vager  was 

It  upon  an  .l».    in  the  strict  sense  of  that  word;  but  on  an  existing, 

;irunascertamed  fact,  the  sex  of  the  Ckevalier  D^Eon.     It  -  J-  tha  , 

fo  othe-  sense  above  suggested,  treating  the  discovery  as  the  eAent,  it 

poUcv,  o'ned  as  a  poUc,'  and  any  number  of  persons  whatever  might  have 
subscribed  it  as  such;  therefore,  it  is  clearly  within  the  act 

In  the  case  of  Paterson  v.  Powell,  cited  at  the  beginning  of  the  note,  the 
co^t  a!  wm  be  seen  on  reference  to  the  extracts  above  made  from  the  3U dg- 
Tnt  of  the  Lord  Chief  Justice,  relied  particularly  upon  the  form  of  the 

contract,  which  was  that  of  a  policy.  ^     ,, ,,    jrjuntf  that 

On  the  other  hand,  it  is  clear,  as  has  been  said,  from  Good  v.  EUiott,  that 
it^s  not  every  wag<^  which  is  an  insurance  within  the  meamng  of  the  act. 
T  r'.  7  V  FZ^o«  the  wager,  it  is  true,  was  not  upon  an  event ;  but  we  have 
sL  a  Udy  h  w  ihL  th:  ms'tinction  is  between  a  wager  on  a  future  circum- 
stance and  a  wager  on  the  future  discovery  of  a  present  but  rn^lou,wn  one 
In  a  case  however,  in  the  Court  of  Queen's  Bench,  it  has  been  held  to  make 
the  differ;nce  between  the  legality  and  illegality  of  a  bet  on  the  result  of  a 
linrsp-race   Pudh  v.  Jenkins,  1  Q.  B.  631.  . 

n  the  cis^  of  Morgan  v.  Pebrer,  3  Bing.  N.  C  457,  the  impression  of    he 
In  the  ^ase  o  j  ^  .^  ^^^  conceived  m  the 

Z  rrpX   :.'^"nori^cessarily  fall  within  the  statute^     It  was  a 
actTon  of  asljsu;  and  the  declaration  stated  that  ^^^^^^^^ 
plaintiffs  would,  at  the  defendant's  request,  purchase  \0'000  •  o^^^'  ^^  ^^ 
and  30,000^.  Spanish  Scrip,  t^e  defendant  promised   «  "f  ™"^^^;;  ^^i^^Hhe 
loss  in  a  particular  manner,  which  he  had  neglected  to  do.     Pa,  that  the 
irtract  was^  for  the  purchase  of  public  securities,  to  ^^e   d^  ;verec^^^^ 
fnture  dav    and  was  in  truth  a  wager  on  the  price  of  Spanish  secuuties, 
Hhich  the  p  aintifts,  as  brokers  for  the  defendant,  agreed  with  cer tarn 
n^^^     tl  at  if  the  price  of  the  said  securities  should  be  higher  on  a  certain 
?: Ui     1     1 1    defenrit  should  receive  the  difference;  if  lower,  should  pay 
h     diftlrence.     Demurrer,  on  the  argument  of   which  it  was  ^^ecided    in 
acco^al  with  Henderson  v.  Bise,  1  Stark.  158;    Wells  y.Pc^^  2  B.„g^ 
N    C    722  •   Oaklev  v.  Rigby,  ibid.  732 ;  Elseworth  v.  Cole,  2  M.  &  W.  31 ,  and 
P  ;      ,\    Fallml^  3  Bincl.  N.  C.  392,  that  time-bargains  in  foreign  securities 
t  :     ot  ^M     y  1  S^ock-Jobbing  Act,  [the  7  Geo.  2,  c.  B  C-pealed  by  the 
^3  Vi^t   c.  28)  ;  Lid  see  now,  since  the  8  &  9  Vict.  c.  109,  Tkacker  v.  Bauly, 

'  U'tS;  "h  t^:ta^^  principal  point,  it  was  also  submitted  to  the  cou^ 
bv  Mr  Ga  e  ^^L  argued  for  the  defendant,  that  the  contract  was  a  gaming 
llZ  voicl'  by  the  U  G.  3,  ^^ ^^^^  ^.^I^^^^T^  ^^^^ 
C^::i^^^^tr:.:^^^^^^^^  enaciments  agahist 
"""„!  policies  on  lives;  and  I  cannot  see  how  a  simple  wager,  unob^  - 
rn:;;:^upon  other  grounds,  can  be  said  to  fall  -^!^^^^:^^^^ 
does  not  even  assume  the  form  of  a  policy  of  insumnce.  J^  °7;^;[;;"^; 
nf  thP  vest  of  the  court  were  equally  strong,  and  it  was  expresslj  statea  oy 
Mr.  j!  VaugM^  that  Lord  Kenyon  and  Mr.  J.  Grose  had  both  laid  it  down 


1550  (;(U»sAi.L  \.  I5<>i,i)i:i:(). 

"  that  tltc  statute  did  not  apply,  except  in  the  ca»e  ichere  the  teager  atsumed  the 
xhapc  of  a  pulicij  of  insurance." 

It  must,  however,  be  observed  on  Murtjan  v.  J'ehrer,  that  It  does  not  seem 
to  have  been  neceimary  in  tiiat  case  to  decide  tlie  point,  whether  a  wa^er  on  a 
future  event,  not  conceived  in  the  usual  shape  of  a  policy,  be  within  the 
nieauiug  of  the  act  or  not.  For  it  did  not  sulllciently  appear  from  the  n'cord 
that  the  parties  were  not  intertnted  in  the  event.  On  the  contrary,  it  ratlu-r 
appeared  that  they  were  so:  for.  thon;;h  tliey  were  not  possessed  of  the 
Spanisli  St<ick,  still,  if  a  contract  to  buy  foreij^n  stock  at  a  future  day,  or 
else  pay  the  diUVreiice  between  its  then  and  present  price,  [was]  not  ilUi^al 
as  a  time-barfjaiu  witliin  the  Stock-.Iobblns;  Act,  then  It  is  clear  that  the  party 
making  such  a  contract  [hnd]  an  Interest  in  the  eventful  price,  and.  If  so,  the 
case  [could  not]  fall  within  the  14  G.  3. 

There  is  another  {ground  on  which  this  case  may  possibly  be  exempted  from 
the  operatitui  of  the  statute.  Lord  Kenyon,  It  will  be  remembered,  seemed 
to  think  that  the  act  only  a|>plied  to  trriltt-n  cnntrnits.  Now  there  was  no 
averment  in  any  part  of  tin-  record  in  Munjiiii  v.  I'lfntr.  that  any  part  of  the 
contract  there  was  in  irritimj.  Wiieliier  l.oril  Kenyon's  ilirtum  on  that  sub- 
ject nuiy  be  hereafter  actpiiesced  in.  is  anotiier  <|Uestion.  Certainly  it  woidd 
be  stranjje  if  a  tjaviinij  polinj,  prohibited  from  beiiif;  made  in  writing;,  coidd 
be  fjood  if  made  by  parol :  and  the  effect  of  that  clau.se  In  the  statute  which 
directs  that  the  name  of  the  party  Interested  shall  be  Inserted,  may  perhaps 
be,  not  to  render  a  policy  ijood  if  verbal,  which  would  be  bad  if  written,  but 
to  render  a  writinj;  necessary  in  every  case.  [It  should  be  observeil  tliat 
under  tlie  Stam|)  Acts  it  is  necessary  that  policies  should  be  In  wrltln;:,  see 
3.'}  Geo.  3,  c.  (;:5,  now  repealed:  .'5(i  Vict.  c.  '.'3,  s.  7;  33  &  34  Vict.  c.  '.»".  ss. 
117,  118.] 

Notwitlistaniiini;  the  stroni;  ex|»ressions  used  l)y  the  court  in  Munjan  v. 
Pebrer,  which,  accurdinj^  to  the  well-known  rule,  must  be  referretl  to  the  case 
then  before  them,  it  is  extremely  ditlicult  to  suppose,  that  If,  in  any  of  those 
transactions  on  which  policies  are  usual  a  iraminsf  policy  were  worded  like  a 
common  waj»er,  it  would  be  held  to  be  thus  exempteil  from  the  operation 
of  tlie  14  G.  3. 

To  such  cases  the  expressions  of  Lord  Manslleld  in  l'<ist>r  v.  'Jhurkiry, 
cited  l)y  Huller.  .L.  in  (ianil  v.  lilliolt,  [3  T.  K.  i'>'X\]  would  forcibly  apply. 
"  What,"  said  his  lordship,  "  is  a  policy?  It  is  derive«l  from  a  French  word 
which  means  a  pi-omise.  Is  a  particular  form  necessary?  Must  it  beirin, 
'In  the  name  of  God,  Amen'?  or  refer  to  Lombaril  Street?  A  inercantih' 
policy  we  all  know,  but  a  yarning  policy  is  a  mere  wajjer.  If  the  form  were 
essential  under  the  act,  it  may  be  evaded  immediately:  for  it  may  be<rin, 
'  We  promise,  if  war  be  declared,  we  will  pay,'  &c.  Apply  that  to  mercantile 
affairs :  '  We  promise,  if  the  ship  sails,  and  does  not  arrive,'  &c."  Perhaps 
few  readers  have  perused  the  admirable  jnilirment  of  Mr.  J.  Duller,  in  the 
case  of  Good  v.  Elliott,  without  feelinjj  reirret  that  his  construction  of 
the  act  was  not  adopted,  and  all  idle  wafers  whatever  held  to  be  invalidated 
by  it.  See  also  the  remark  of  Lord  Dennian,  C.  J.,  in  Fisher  v.  Waltham, 
4  Q.  B.  893. 

It  must  indeed  be  observed  that,  even  as  the  law  now  stands,  many  such 
are  void  as  contravening  public  policy :  for  instance,  between  voters  as  to 
the  result  of  an  election,  Allen  v.  Hearn,  1  T.  R.  56:  or  whether  T.  W. 
would  be  transported  for  forgery,  I'Jvnns  v.  Junes,  5  M.  &  W.  77.  So,  in 
Fisher  v.  W^altham,  4  Q.  B.  889,  where  a  clerk  having  betted  that  he  would 


DALBY  V.  INDIA  AND  LONDON  LIFE  ASSURANCE  CO.      1551 

not  pass  his  examination  for  admission  as  an  attorney,  the  bet  was  held  void 
on  the  ground  that  he  had  the  event  in  his  own  hands,  which  it  is  presumed 
the  court  looked  upon  as  a  circumstance  inconsistent  with  there  being  a  con- 
sideration for  the  defendant's  promise. 

The  legislature  also  has  interposed  to  render  wagers,  with  some  few 
exceptions,  incapable  of  being  enforced  by  action,  though  not  to  make  them 
absolutely  illegal,  for  the  statute  8  &  9  Vict.  c.  109,  s.  18,  enacts,  "that  all 
contracts  or  agreements,  whether  by  parol  or  in  writing,  by  way  of  gaming 
or  wagering,  shall  be  null  and  void ;  and  that  no  suit  shall  be  brought  or 
maintahied  in  any  Court  of  Law  or  Equity  for  recovering  any  sum  of  money 
or  valuable  thing  alleged  to  be  won  upon  any  wager,  or  which  shall  have 
been  deposited  in  the  hands  of  any  person  to  abide  the  event  on  Avhich  any 
wager  shall  have  been  made  :  provided  always,  that  this  enactment  shall  not 
be  deemed  to  apply  to  any  subscription  or  contribution,  or  agreement  to 
subscribe  or  contribute,  for  or  towards  any  plate,  prize,  or  sum  of  money  to 
be  awarded  to  the  winner  or  winners  of  any  lawful  game,  sport,  pastime,  or 
exercise."  ICnomhes  v.  Dibble,  L.  R.  1  Ex.  248;  Batson  v.  Newman,  1  C.  P. 
D.  573;  Dimple  v.  Hig(j!<,  2  C.  P.  D.  422;   Trimble  v.  Hill,  5  App.  Ca.  342.] 

This  section  does  not  prevent  a  person  who  repudiates  a  wager  before  it  is 
decided  from  recovering  his  deposit  from  a  stakeholder.  Varney  v.  Hickman, 
5  C.  B.  271.  [See  also  Martin  v.  Hewson,  10  Exch.  737,  where  to  a  plea  that 
the  money  sought  to  be  recovered  in  the  action  had  been  deposited  in  the 
defendant's  hands  as  a  stakeholder,  to  abide  the  event  of  an  illegal  game  on 
which  the  money  had  been  wagered  by  the  plaintiff*,  a  replication  that  before 
the  result  of  the  wager  the  plaintiff"  had  repudiated  it  and  required  a  return 
of  the  money,  was  held  to  be  good;  and  see  Hampden  v.  Walsh,  1  Q.  B.  D. 
189,  45  L.  J.  Q.  B.  288,  where  the  repudiation  did  not  take  place  till  the  wager 
was  decided,  and  the  stakeholder  was  about  to  pay  over  the  money;  and 
Batson  v.  Neumian,  1  C.  P.  D.  573.  Money  paid  in  payment  of  bets,  at  defend- 
ant's request,  may  be  sued  for  and  recovered,  Ex  parte  Pyke,  8  Ch.  D.  754 : 
so  in  Beeston  v.  Beeston,  1  Ex.  D.  13,  45  L.  J.  Ex.  230,  the  plaintiff  was  allowed 
to  sue  upon  a  cheque  given  by  the  defendant  for  the  plaintiff"'s  proportion  of 
money  won  by  bets  made  on  behalf  of  both  by  the  defendant;  and  in 
Bri(l(jer  v.  Savage,  15  Q.  B.  D.  363,  54  L.  J.  Q.  B.  464,  the  plaintiff  was  held 
entitled  to  recover  from  the  defendant  the  amount  received  by  the  latter  in 
payment  of  bets  made  by  him  on  commission  for  the  plaintiff'.  In  Read  v. 
Anderson,  13  Q.  B.  D.  779;  53  L.  J.  Q.  B.  532,  the  plaintiff"  was  held  (Brett, 
M.  R.,  dissenting)  entitled  to  recover  from  the  defendant  the  amount  which 
he  had  paid  for  bets  made  by  him  in  his  own  name  on  behalf  of  the  defend- 
ant, but  which  the  defendant  had  repudiated,  and  forbidden  him  to  pay  after 
they  were  lost.  In  Thacker  v.  Hardy,  4  Q.  B.  D:  685;  48  L.  J.  Q.  B.  289 
(followed  in  Ex  parte  Rogers,  15  Ch.  D.  p.  214),  it  was  held,  affirming  the 
judgment  of  Lindley,  L.  J.,  that  the  plaintiff,  a  stockbroker,  who  had  been 
employed  by  the  defendant  to  buy  and  sell  stocks  on  the  terms  that  "  differ- 
ences "  only  should  be  paid  between  them,  no  stocks  being  actually  delivered, 
was  entitled  to  be  indemnified  by  the  defendant  against  the  personal  liability 
incurred  by  him  in  effecting  such  contracts.] 

By  sect.  19  [(repealed,  except  as  to  inferior  courts,  by  46  &  47  Vict.  c.  49, 
ss.  4  and  7)]  it  is  provided  that  it  "  shall  be  lawful,"  in  cases  of  feigned 
issues,  for  the  court  to  direct  them  in  a  form  given  in  the  schedule  to  the 
act.  Where  a  feigned  issue  was  made  up  since  the  statute  in  the  old  form 
of  a  wager,  an  attempt  was  made  to  stay  the  proceedings  upon  it,  on  the 


15o2  tJOUSAl.h    V.    l;nLl)Ki:o, 

trroiiiitl  that  it  «llsc|i>N('<l  n  contruct,  In  roiitravi>ntlon  of  tlip  Hth  Miction. 
Tlif  court,  however,  ri'fusi'«l  a  rulf  to  show  miiHr,  >m-Iiij»  clearly  of  opinion 
that  It  was  not  a  wa^cr  within  the  iiieniiliiu  of  tiie  act.  Lu'int  v.  Ihnrhrr,  t 
('.  It.  »7>H.  [See,  al.Ho,  a.<t  to  wliat  cuntract.t  amount  to  waKer»  withlu  the 
nieaniuK  of  this  act,  liuurkr  v.  Short,  5  K.  &  U.  'J4>4 ;  lliijgiHBun  \.  Simftton,  t 
C.  I'.  I).  7(i.] 

A  foot-race  han  Iwen  hehl  to  he  a  "  lawful  jcame  "  within  the  provlM)  at 
the  enil  of  sect,  in,  llnUn  v.  Murrintt,  5  C.  B.  M|H;  [hut  when*  the  tranHacth>n 
l.s  In  Mul)stauce  a  wauer.  the  proviso  thw-s  not  protect  It;  therefore,  in  Di<j'jlr 
V.  /liiitjii,  '2  Kx.  I).  4'.'i;,  it  wa.s  lieiil  l»y  the  Court  of  Appeal,  nverruilnu  llaltif 
V.  M'trrintt,  .'»  C  \\.  His,  tlmt  wlien-  two  imtsous  ha*l  «leposlie«l  a  errtnln  nuin 
ca<'h,  to  al>l(l«>  tlie  event  of  a  walkini;  match  itetween  them,  it  was  competent 
for  one  of  them  to  revoke  the  stakehoUler's  authority  to  pay  «)ver  tlie  money, 
ami  to  recover  It  hack  hy  action;   Trimhlr  v.  //«//,  5  App.  Ca.  342.] 

A  kintl  of  };amiiii;  having  spruii:;  up  by  the  o|M'nlnu  of  places  eall<*tl  UetthiK 
Houses,  the  owners  of  whii-h  recelve«l  money  tm  tiie  promise  to  pay  so  much 
upon  llie  events  of  horse-races  or  the  like,  the  statute  l»»  St  17  Vict,  c  lIU. 
■was  passed,  hy  which  [every]  such  house  [oltlce,  nxim,  or  place  (F.nnttruiitl 
V.  Milhr,  L.  U.  U  1^.  H.  440;  Ihnra  v.  Ftninrk,  L.  I{.  1»  C.  V.  SM ;  t;,illii>f.ty  v. 
Mari>i>,  H  y.  n.  I).  27.*.;  :.l  I..  J.  M.  C  .'>:«;  Smne  v.  Hill.  14  t^.  11.  I).  :.mm  ;  54 
L.  .1.  .M.  (V  9a,)]  are  declareil  to  l>o  common  uamtnt;  houses  within  the  niean- 
Inj;  of  the  H  &  'J  Vict.  c.  109,  s.  2;  hy  s.  4,  persons  receiviny  money  In  any 
such  liouse  are  made  liable  to  a  |H>iialty,  aud  the  money  so  paid  can  l>c  recov- 
ered back  under  s.  5,  as  paid  to  the  use  of  the  party  makluK  the  tleimslt. 
[This  act  has  In-en  amended  by  :<7  Vict.  c.  l.l.  as  to  the  sco|k'  of  which  a<*t, 
see  C»x  v.  Amlrnn,,  12  (^.  11.  I).  12»',:  :,:\  I..  .1.  M.  <\  .14  J^ee  also  Ul.lh'tm  v. 
ftamg'l'-n,  44  L.  .1.  C.  1*.  'Mrj;  .hnkn  v.  Turi'in,  \'A  ^  »•  l>  •'»<•'»;  .V»  L.  J.  M.  V. 
U!l ;  the  :ta  i  :»»■.  Vict.  c.  y4,  s.  17;  anil  f«>r  an  instance  of  irandnj;  under  this 
latter  statute,  Itrw  v.  Jiamlon,  a  t^.  B.  I).  4.'i4. 

The  H  jL  y  ^'ict.  c.  1011,  did  not  extend  to  India  (  where  however,  it  has  since 
been  followed),  ami  therefore  l)y  the  common  law  of  Kn^land  (which  was  In 
force  In  India  In  lH4rt),  an  action  was  maintainable  on  a  watfer  made  there, 
aUlioui;h  the  parties  had  no  previous  Interest  In  the  subject-matter,  If  the 
wn^er  was  not  airaliist  piil)llc  polh-y,  or  against  the  Interest  or  fecllnjfs  c»f 
third  parties,  aud  diil  not  lead  to  any  lnde<'ent  eviden«"e.  See  llnmloll  Thack- 
oitrs'iiiltt^.t  V.  Sinijiinutitll  /thntnlmull,  4  Moo    IihI.  .Vpp.  f.  '.VM  ] 

Witli  respect  to  the  nntiirf  of  the  intrri-M  wldch  the  14  (ieo.  W,  c.  4M,  re- 
quires, Lonl  Tenlerden,  in  I/ulJhnl  v.  Kijintr,  10  B.  &  ('.  72.'»,  expres.seil  a 
stronj;  opinion  that  It  must  be  'i  pininitDy  our.  A  policy  effected  l>y  a  father, 
in  his  own  name,  on  the  life  of  his  son,  was,  in  tliat  case,  held  void.  '•  It  Is 
enacted,"  says  Bayley,  J.,*"  that  no  jjreater  sum  shall  Im*  recovenMl  than  the 
ann'iiiU  of  thf  riilup  of  the  Interest.  Now  what  was  the  ammint  nf  the  mine  of 
the  interest  in  this  case?  Certainly  not  one  farthing.  If  a  father,  wl.shlni^ 
to  liive  his  son  some  property  to  dispose  of,  make  an  insurance  on  his  .son's 
life,  in  his  (the  son's)  name,  not  for  his  (the  father's)  own  benefit,  i)ut  for 
tlie  benefit  of  the  son,  there  is  no  law  to  prevent  his  doinj;  .so;  but  that  is  a 
transaction  tuiite  ditferent  from  the  present."  [See  also  IlrMon  v.  West,  3 
B.  &  S.  .')70.  In  WnrHnnijtOH  v.  Curtis,  1  Ch.  D.  4rJ;  4:>  L.  J.  Ch.  250.  a  father 
had  efl'ected  a  policy  for  his  own  benefit  on  the  life  of  and  In  the  name  of  his 
son,  and  on  his  son's  death  had  taken  ont  administration,  and  received  the 
sum  insured.  In  a  crcditi>r's  suit  it  was  held  tliat.as  the  office  had  not  chosen 
to  resist  the  claim,  the  maxim  potior  est  conditio  possidentis  applied,  and  the 
father  was  entitled  to  retain  tlie  money  as  against  the  creditors.] 


DALBY  V.  INDIA  AND  LONDON  LIFE  ASSURANCE  CO.      1553 

A  creditor  (as  is  well  known)  has  an  insurable  interest  in  the  life  of  his 
debtor,  Anderson  v.  Edie,  Park.  Ins.  8th  ed.  915 ;  unless,  indeed,  the  debt  be 
an  illegal  one,  Dwyer  v.  Edie,  lb.  914;  [see  Hehdon  v.  West,  just  cited,  where 
it  was  held  that  a  clerk  in  a  bank  had  an  insurable  interest  in  the  life  of  the 
managing  partner  by  reason  of  an  engagement  by  the  manager  to  employ  the 
clerk  at  a  certain  salary  for  seven  years,  to  the  extent  of  so  much  of  the  seven 
years  as  remained  unexpired  at  the  time  of  the  effecting  of  the  policy.  And 
in  the  same  case  the  court  held  that  the  clerk  had  no  insurable  interest  by 
reason  of  a  promise  to  him  from  the  manager  that  he  would  not,  during  his 
life,  enforce  payment  of  a  debt  due  from  the  clerk  to  the  bank.  One  of  two 
joint  obligors  of  a  bond  has  an  insurable  interest  in  the  life  of  the  other, 
Branford  v.  Saunders,  25  W.  R.  Ex.  650. 

Upon  the  analogous  question  what  constitutes  an  insurable  interest  in 
cases  of  marine  insurance  which,  as  we  have  seen,  are  excluded  from  the 
operation  of  this  statute,  see  judgment  in  Seagrnve  v.  The  Union  Marine 
Insurance  Co.,  L.  R.  1  C.  P.  305 ;  Wilson  v.  Jones,  L.  R.  I  Ex.  193,  2  Ex.  139; 
Ebs^corth  v.  Alliance  Marine  Insurance  Co.,  L.  R.  8  C.  P.  596;  Inglis  v.  Stock, 
10  App.  Ca.  263;  54  L.  J.  Q.  B.  582.] 

A  trustee  may  insure  in  respect  of  the  interest  of  which  he  is  trustee, 
Tidsioell  v.  Angerstein,  Peake,  151.  Lord  Kenyon  held,  at  Nisi  Prius,  that  a 
wife  who  had  insured  her  husband's  life,  need  not  prove  that  she  was  inter- 
ested in  it,  for  it  mast  be  presumed.  Bead  v.  Royal  Exchange  Insurance  Co., 
Peake,  Ad.  Ca.  70.  It  has  been  always  considered  clear  that  a  man  may 
insure  his  own  life;  but,  as  has  been  already  observed  [p.  307],  the  Court  of 
Exchequer  has  expressed  an  opinion  in  Wainirright  v.  Bland,  that  a  man  can- 
not, in  order  to  evade  the  statute,  legally  insure  his  own  life  with  the  money 
and  for  the  benefit  of  another.  Indeed,  there  would  be  another  objection  to 
such  a  proceeding,  arising  from  sect.  2  of  the  statute,  which  requires  the 
insertion  of  the  name  of  the  person  on  whose  account  the  policy  was  under- 
written. [See  Evans  v.  Bignold,  L.  R.  4  Q.  B.  622,  and  Shilling  v.  The  Acci- 
dental Death  Insurance  Co.,  2  H.  &  N.  42,  in  which  case  an  action  was  brought 
by  the  executrix  of  J.  S.  upon  a  policy  of  insurance  on  his  life,  and  a  plea 
alleging  that  the  policy  had  been  made  by  T.  S.  in  the  name  of  J.  S.,  but  for 
the  use  and  benefit  of  T.  S.,  and  not  for  the  use  or  on  account  of  J.  S.,  and 
that  T.  S.  had  not  any  interest  in  the  life  of  J.  S.  was  held  to  be  a  good 
plea.]  Qucere,  if  an  allegation  in  a  declaration  upon  a  policy  that  A.  and  B. 
were  interested,  is  satisfied  by  proof  that  A.  was  mortgagor,  and  B.  mortga- 
gee.    See  Pirn  v.  Keid,  6  M.  &  Gr.  I. 

[We  have  already  seen  that  sect.  3  of  the  14  Geo.  3,  c.  48,  provides  that  in 
all  cases  in  which  the  assured  had  an  interest  in  the  life  or  event  in  respect 
of  which  the  policy  is  eftected,  no  greater  sum  shall  be  recovered  or  received 
from  the  insurer  or  insurers  than  the  value  of  that  interest  at  the  date  of  the 
policy. 

The  Court  of  Queen's  Bench  put  upon  these  words  in  Ilebdon  v.  West, 
supra,  the  construction,  that  where  there  are  several  policies  effected  with 
difl'erent  offices,  the  assured  can  recover  no  more  from  the  insurers,  whether 
on  one  policy  or  many,  than  the  amount  of  his  insurable  interest.  "  Look- 
ing," said  the  court,  in  that  case,  "  to  the  declared  object  of  the  legislature, 
we  are  of  opinion  that  though,  upon  a  life  policy,  the  insurable  interest  at 
the  time  of  the  making  the  policy,  and  not  the  interest  at  the  time  of  the 
death,  is  to  be  considered,  it  was  intended  by  the  3rd  section  of  the  act  that 
the  insured  should  in  no  case  recover  or  receive  from  the  insurers  (whether 


15r>4  (JOlXSALL    V.    Iinl.DKKO. 

upon  out*  policy  or  many)  more  than  tin-  InHurahU-  intort'iit  whli-li  tlir  {htiuio 
iiitikiiit;  the  In.siirHncc  Iwul  ut  ttu>  tlm«r  lii>  hiMiiriMi  tlif  llf<*.  If  fur  i;rt*at«r 
HiTiirliy  Ik-  tlilnkn  tit  to  InNurc  with  nimiy  p«-rson>i  niul  l>y  dliriTi-nt  conlnietM 
of  insiiniiiif,  ami  io  pay  the  prcniliini**  upon  cMth  policy,  h«*  U  at  lilM-rty  tu 
do  ?«o,  hut  hf  CUM  only  rrcovrr  or  rt-cvlve  upon  the  \\ho|i>  tin*  nnmunt  ut  hln 
lnsural)lc  intcn-st ;  and  If  lit-  hn.H  ri-rclvc«l  tin*  whole  amount  from  nni*  In- 
surer, he  is  precluded  by  the  terms  of  Ihe  ;lril  section  «»f  the  otnlute  fr«>m 
recoveriu!;  any  more  from  the  others.  Any  aruument  ari^lnt;  from  the  nU|>- 
poseil  hardship  of  allow  inu  the  liitiirers  In  such  a  case  to  receUe  and  rulalo 
the  prendums  without  heln;;  ol)||<;ed  to  pay  the  consideration  for  whicli  such 
prendums  wen*  pahl,  would  Im'  i><|ually  applicable  to  the  case  of  marine 
Insuranres,  upon  which,  however  nniny  policies  there  n»ay  Ik-,  the  under- 
writers are  only  liable  to  the  extent  of  the  value  Insured."] 

The  priiu'lpal  case  of  UixUnU  v.  linlih ri»  did  not  Indeed  turn  on  the  statute 
of  14  (ieo.  :i,  but  on  the  common-law  doctrine,  that  Insurance  Is  a  contm«'t  of 
liKli'iindty,  the  act  applyin;:  to  cases  where  there  never  was  an  lnte*fst  to 
Insure;  uml  nit  it  is  mnr  ilrriilnl  Ih'it  it  nnilruft  nf  lifr  iimuninrr  in  nnl  <»«»•  nf 
iiiiU'innitij,  so  It  is  nl>>o  held  that  the  elTec-t  of  tlie  statute  is  only  to  re<|Ulre  an 
Interest  In  the  life  Insured  at  the  date  of  the  c«intract,  /<  ■"  -  ^  /'■-  /•■-'■■  •  ' 
LiiuihtH  Ash.  Co.,  iintr,  p.  2t»7. 

Althoii;;!!  the  doctrine  establlsheil  l)y  <iinl»iill  v.  /<.././.  io  n.-in  tseii  neon- 
nisi'd  in  l:x  jKirlf  Aiidrfirg,  I  Madd.  '>''.i;  Ihnsnn  v.  liliii-kir-rll,  4  Hare's  Kep. 
4;»4;  Unihi-r  v.  Morris,  I  M  JL  K.  *>2,  It  ha»l  been  decided  that  the  converse  of 
(linlsitU  v.  liiilibro  iliti  not  hoUl  t;o«Kl;  .•»o  that  where  an  owner  of  stacks 
malii-iously  set  on  lire,  had  bi-en  paid  the  amount  of  his  Iohs  by  an  Insurance 
olllcc,  he  was  allowed,  notw  ithstaiidini;,  to  recover  against  the  hundred, 
under  the  ;>  < ,  1.  <•.  •.':',  Chirk-  v.  Ithjthimj,  '2  B.  &  C.  2.'.4 ;  S.  1*.  Mntnn  v. 
Sttinsliiirij,  'J  Marshall  on  Insurance,  .'Ird  ed.,  l'M\;  Yntrs  v.  White,  4  HInjj. 
N.  ('.  27'.'.  [And  In  a  recent  case,  it  was  hehl  that  In  an  action  for  personal 
Injuries  sustained  throuijh  the  defendant's  nejill^rence  a  sum  received  by  the 
pl:iiiititr  upon  an  accidental  iusiiran<-e  policy  could  not  be  taken  into  account 
in  reduction  of  danui;;es.  Jini<ll>urn  v.  tirntt  Wrstrrn  Hail.  <'».,  I,.  \{.  |() 
Kx.h.  1  ;  cf.  .hl.srn  v.  A',  it  11'.  /;,.//.i  l)„rk  r,,..  \..  |{.  10  C.  1».  :MX).]  In  the  ca.sc 
I/iilhiml  v.  Smith,  Ci  Ksp.  11,  honl  KllenlHirouyh  «^renn-d  to  be  of  opinion  that 
If  A.  insured  the  life  of  15.  his  debtor,  nml  afterwards  the  d«'bt  was  paid  off. 
B.  mijiht,  by  contluului;  to  pay  the  premiums,  ki-ep  the  policy  alive  for  his 
own  l)cncllt.  (.\s  to  the  circumstances  under  which  a  stranger  to  the  policy 
will)  pays  preiniums  to  keep  it  up,  uniy  acquire  a  lieu  for  the  amount  .so  paiti, 
see  III  re  Lrslie,  2:1  Ch.  1).  .".2:  .".2  L.  J.  Ch.  7<;2.J 

That  the  statute  only  applied  to  the  ori;;inal  parth-s  to  the  contract,  and 
not  to  their  nssiuiu-es,  we  have  already  seen  In  the  «-ase  of  Ashlfij  v.  Afhlftj, 
ante,  p.  307 ;  the  etlect  therefore  of  the  decision  in  l>iilt»i  v.  Ihe  Imliu  nud 
Lomhtti  Ass.  Cd.,  scem.s  to  be  to  put  the  original  party  etlectiny  the  policy  in 
the  same  position  as  an  assi<;nec  confessetlly  was  in.  anil  to  make  the  con- 
tract itself  what  in  its  terms  it  purports  to  be.  not  one  of  Indemnity,  but  an 
enjiairoment  to  pay  a  certain  sum  on  the  happeninir  of  a  certain  event,  in 
consideration  of  the  payment  of  the  premiums  in  the  meanwhile. 

But  marine  insurances  and  insurances  aijainst  Hre  still  remain,  as  they  purport 
in  terms  to  be,  contracts  of  indemnit;/ ;  thus,  in  Potrles  v.  Innes,  11  M.  &  W.  10, 
it  was  held  that  a  person  who  assigns  away  his  interest  in  a  ship  or  ^oods 
after  attectin<;  a  policy  of  insurance  upon  them,  and  l)efore  the  loss,  cannot 
sue  upon  the  policy  :  except  as  a  trustee  for  the  assignee  in  u  case  where  the 


DALBY  V.  INDIA  AND  LONDON  LIFE  ASSUKANCE  CO.      1555 

policy  is  lianded  over  to  him  upon  the  assignment,  or  there  is  an  agreement 
that  it  shall  be  kept  alive  for  his  benefit.  [On  the  other  hand  the  insurable 
interest  of  the  assured  is  not  determined  by  his  parting  after  the  loss  with 
the  property  insured,  for  he  may  sue  as  trustee  for  the  person  to  whom  he 
has  assigned  it,  together  with  his  interest  in  the  policy,  SparJces  v.  Marshall, 
2  Bing.  N.  C.  761.  As  to  where  a  trustee  may  sue  and  what  he  may  recover, 
see  Ellsworth  v.  Alliance  Marine  Insurance  Co.,  L.  R.  8  C.  P.  596  ;  Collinriridcje 
V.  Royal  Exchange  Assurance  Corporation,  3  Q.  B.  D.  173.  Where  a  contract 
of  sale  of  property  insured  contained  no  reference  to  the  insurance  it  was 
held  (James,  L.  J.,  dissenting),  that  the  vendor  who  on  the  destruction  of 
the  propertj^  by  fire  before  payment  of  the  purchase-money  recovered  the 
amount  insured  did  not  receive  it  as  trustee  for  the  purchaser  and  could  not 
be  compelled  to  hand  it  over  to  him,  Rayner  v.  Preston,  18  Ch.  D.  1,  50  L.  J. 
Ch.  472. 

By  31  &  32  Vict.  c.  86,  the  assignee  of  the  policy  is  empowered  to  sue  in  his 
own  name  where  any  policy  on  ship,  goods,  or  freight  has  been  assigned, 
"  so  as  to  pass  the  beneficial  interest  in  such  policy  to  any  person  entitled  to 
the  property  thereby  insured."  In  Lloyd  v.  Fleming,  L.  R.  7  Q.  B.  299,  it  was 
held  that  the  assignee  of  a  policy  "  duly  assigned,"  after  loss,  might  under 
the  above  provision  properly  maintain  an  action  in  his  own  name  on  the 
policy;  and  see  North  of  England,  &c.,  Co.  v.  Archangel,  &c.,  Co.,  L.  R.  10 
Q.  B.  249.  The  Judicature  Act,  1873,  36  &  37  Vict.  c.  66,  also  contains  wide 
provisions  for  transferring  to  the  assignees  of  legal  choses  in  action  all  legal 
rights  and  remedies  in  res^ject  of  the  same,  see  s.  52,  sub-s.  6. 

Though  where  property  insured  lias  been  destroyed  by  fire  after  a  contract 
of  sale,  the  unpaid  vendor,  while  retaining  his  right  to  compel  payment  of 
tlie  purchase-money,  can  nevertheless  before  it  has  been  paid  enforce  his 
claim  against  the  insurers,  Collingridge  v.  Royal  Ass.  Co.,  supra,  the  latter 
who  have  so  i^aid  will  l)e  entitled  to  recover  back  from  him  after  payment  by 
his  purchaser  an  amount  equal  to  the  sum  recovered  b}^  him  under  the  insur- 
ance. For  the  contract  of  fire  insurance  being  one  of  indemnity  the  insurers 
are  not  merely  subrogated  to  all  rights  of  action  of  the  assured  whereby  his 
loss  may  be  diminished,  but  are  also  entitled  to  the  benefit  of  anything  which 
the  assured  has  received  in  reduction  of  the  loss,  provided  it  was  due  to  him 
as  of  right  and  was  not  merelj'  bestowed  as  a  gift,  see  Castellain  v.  Preston, 
II  Q.  B.  D.  380,  52  L.  J.  Q.  B.  366;  distinguishing  Brirnand  v.  Rodocanachi, 
7  App.  Cas.  333,  51  L.  J.  Q.  B.  548.  See  also  Darrell  v.  Tibbitts,  5  Q.  B.  D.  560; 
50  L.  J.  Q.  B.  33;  Marine  Insurance  Co.  v.  China  Transpacific  Steamship  Co., 
11  App.  Ca.  573. 

Another  eff"ect  of  the  I'ule  that  insurance  other  than  life  insurance  is  a  con- 
tract of  indemnity  is  that]  if  there  be  two  insurers  of  the  same  subject- 
matter,  and  one  of  them  pays  the  loss,  the  other  is  discharged,  Morgan  v. 
Price,  4  Exch.  615.  The  rule,  however,  is  [when  applicable]  subject  to  a 
qualification  which  applies  to  all  cases  of  valued  policies,  namely,  that  the 
parties  may  agree  upon  a  merely  arbitrary  estimate  of  the  value  of  the  subject 
insiired,  by  way  of  liquidated  damages ;  and  this  estimate  will,  in  the  absence 
of  fraud,  be  the  measure  of  the  liability  of  the  insurer.  See  Irving  v.  Maim- 
ing, 6  C.  B.  391 ;   ^Barker  v.  Janson,  L.  R.  3  C.  P.  303. 

The  effect  of  this  rule  as  to  the  valuation  in  a  policj',  combined  with  the 
other  as  to  insiirances  being  a  contract  of  indemnity  is,  that  where  an  assured 
has  been  reimbursed,  either  by  payment  of  another  policy  or  otherwise,  the 
amount  received  goes  in  reduction  2^i'o  tanto  of  his  claim,  and  if  it  amounts 


1556  GODSALL    V.    UOLDKICO. 

to  the  vnliidtion  in  tlu-  policy,  it  cxtiiiKiiiHlu'ii  tlu*  ilulin.  On  tiiiM  principle 
was  based  the  decision  in]  Irriiuj  v.  Uir/mrdson,  1  M.  i.  Hoh.  I5.t.  [Then*] 
tlie  defendant  had  insured  Tor  170<J/.  with  a  (iiasj^ow  company,  and  2uiM)/. 
witli  tlie  Alliance  olllce,  on  the  sidp  Stri/tturr,  valued  in  f»>th  jHilirirs  at 
;!IMX)/. :  he  received  botli  sums,  the  Alliance  not  l)ein;j,  wlien  lliev  paid,  awaro 
of  the  former  insurance.  'I'he  Alliance  afterwards  brought  an  action  to 
recover  l)acli  70<>/.,  belny  the  excess  ttf  the  amount  paid  ab«(Ve  the  value 
declared,  anil  Lord  Tenterden  helil  them  entitled  to  recover,  the  defendant 
beins;  l)ound  by  tlie  valuation  in  the  policy,  though  the  vessel  was  really  worth 
^700/. 

[It  Is  true  that]  In  Iiuu»jirUl  v.  linrnrg,  4  Camp.  22H,  where  the  valueH 
declared  were  CAHM.  in  one  policy,  and  M<»00/.  In  another;  the  Insuretl  was 
liermitted  to  recover  GOO/,  upon  the  fonner  policy.  thou:;h  he  had  already 
recovered  (JiXHj/.  on  the  latter,  the  real  value  Ik-Iuk  s.Vn*/.  [It  is  however 
submitted  that  Itnusjlftil  v.  Ilnrum,  which  was  d(>ubted  In  Irrhnj  v.  lUrhnnl- 
»<>H,  must  be  con>iiden'd  as  overruh-*!  by  llniri-  v.  Ji>ne»,  I  H.  A  ('.  '{\'i.  W'l  L..I. 
Kx.  i;{2.  In  that  «a.se  the  action  was  bron;;ht  on  a  policy  of  Insurance  f<)r 
24(K)/.  eflecled  on  a  ship  valued  at  \\'1K*M.  The  ship  was  Insun'd  by  other 
policies,  in  one  of  which  the  value  was  llxetl  at  5U0l)/.  On  these  other  policies 
the  |)lalntit1'had  received  312(>/.  \'^».  M.,  and  he  wom  held  entltleil  to  riH'ovcr 
oidy  the  ilitt'erence  between  that  sum  ami  32(H)/.,  the  value  In  the  policy  sueil 
upon.  In  \i>rth  nf  lluiil'iml  /nsurniirf  .{ms.  v.  AnnMtnnnj,  L.  U.  .'»  (j  H.  244, 
a  ship  which  liad  been  insured  in  a  valued  policy  for  (;<mmi/.  was  run  down  and 
sunk  by  another  ship,  and  the  sum  of  Cixto/.  was  then-npon  paid  by  the  under- 
writers to  tlie  owners.  The  owm-rs  afterwards  recovere«l  :,iHH)l.  in  a  suit  In 
the  Court  of  .Vdmiralty  in  respret  of  the  damage  cause«i  by  the  collision,  and 
it  was  held,  that  althoimh  the  true  value  of  the  ship  was  !MMN)/.  the  under- 
writers were  nevertheless  entitled  to  the  damages  thus  recoveretl,  whl<-h  were 
in  the  nature  of  salvajje.  See  also  Cnmmercint  I'ltion  Atm.t'u.  v.  I.istT,  \..  K. 
'J  Ch.  4H.S.  4:i  L.  .1.  Ch.  t;()l.] 

A  policy  on  floods  "  lost  or  not  lost."  Is  a  contract  of  indemnity  a<ralnst  all 
pitst  as  well  as  all  fnture  losses  sustained  by  the  a>s\ired  In  respect  to  the  In- 
terest insured;  where  therefore  a  policy  was  ellecteil  on  :tt',o  bales  of  cotton, 
lost  or  not  Ii>k(.  at  and  from  Bombay  to  London,  it  was  lu-ld  the  assured  miyht 
recover  fi>r  dama;ie  to  the  j;oods  fnun  perils  of  the  sea  during;  the  voya;ie, 
although  such  damaije  had  been  snstaiiietl  l»efore  the  purchase  of  the  jjoods 
by  the  assured,  it  not  appearing  that  the  ijootls  had  been  purchased  an  dam- 
aged goods,  Sutherland  v.  Pratt,  11  M.  &  W.  296. 

[It  must  be  observed  that  the  10  Cieo.  2,  c.  37,  does  not  apply  to  fon-ign 
ships.  They  were  onutted  from  its  provisions.  It  Is  said,  owing  to  the  dilll- 
culty  of  bringing  witnesses  from  abroad  to  prove  interest.  Insurances  on 
foreign  ships  are  therefore  valid,  even  though  there  is  no  interest,  provided 
the  policy  appears  on  the  face  of  it  to  be  a  wager  policy;  see  'JJtfllKXifnn  v. 
Fletcher,  1  Dougl.  3I.">;  Cranfiird  v.  Hunter,  S  T.  R.  13;  Lucena  V.  Craufurd, 
3  B.  i  P.  101;  and  Cousins  v.  Xanles.  3  Taunt.  512.] 


The  principal  case  settled  the  English  law,  as  to  the  nature  of 
life  insurance,  and  distinctly  held  that  a  policy  of  life  insurance 
is  not  a  contract  of  indemnity  merely,  and  that  if  the  insurer 


DALBY  Y.  INDIA  AND  LONDON  LIFE  ASSURANCE  CO.     1557 

te  an  interest  in  the  insured  at  the  time  the  contact  .™le 
he  can  recover  in  the  event  of  a  loss;  Godsal  v  Boldeio  9 
tst  72,  was  overruled  by  the  pnucipal  case,  only  m  respec  to 
tLl.  rule  concerning  the  insurance  of  lives,  and  is  neveit  leless 
osotn  Witt  the' aw  both  in  England  and  America,  relating 
to  fii^  and  marine  insurance,  in  so  far  that  the  decisions,  with 
a  ft  exceptions,  uniformly  maintained  the  F^»f  7'  /^ 
there  must  be  an  interest  in  the  insurer,  both  at  the  time  of  the 
inception  of  the  contract  and  at  the  time  of  the  loss. 

Ilthouch  wager  policies  seem  to  have  been  recognized  as 
vahd  n  Englaifd  before  the  19  G.  II.  c.  37,  they  never  have 
Zeno  recognized  in  the  United  States,  except  m  the  state  of 
New  Jersey,  and  in  a  few  early  cases  in  the  state  of  New  Yoik. 

I.   As  to  Marine  and  Fire  Inmratiee. 

(a^-)  wager  policies. -In  Howard  ..  Albany  Insurance  Co., 

3  Den  8M,  the  court  defines  a  wager  policy  as  follows :  "  When 

he  i^surei  has  no  interest  at  stake,  the  policy  is  a  mere  wag^i 

where  one  party  stakes  the  sum  insured,  and  the  othei   the 

e  i:  pall.  I  the  happening  or  not  ^^^VV^;;^^^^^^ 
event "    Wager  policies  were  sometimes  reluctantly  ^"PPO^t''^ ' 
rjihel  ...  Church.  2  Johns.  Cas.  333,  where  it  is  held  tha    a 

su™  having  insured  the  profits  to  be  made  on  --goj^jj 
was  to  be  brought  by  a  certain  ship,  when  in  fact  the  ship 
C!ht  no  carlo  at  111,  could  not  recover  the  premium  w^nch 
he  td  paid,  Kent.  J.,  said.  "I  consider  this  a  wager  pol  c  , 
t  J  a  nier;  betting  on  the  return  of  th.  ship,  ^^  if  she  lad 
not  returned,  in  consequence  of  any  P-''!  -^^^f  ^^  '^ 
policy  the  plaintiff  would,  on  its  production,  have  been  en 
poiicj,  iiic  1  „,;*liniit  raovino- any  interest  or 

titled  to  the  sum  insured,  .  .  .  '"™°.'^*  P'°™=  ",/„  p  ■  ,4,. 
coods  on  board."  See.  also.  Clendin.ng  v.  Church,  3  Cai.  1«  , 
lulil  ..  Ocean  Ins.  Co..  6  Cow.  318;  See,  however,  fcr 

X^  Z  l^!iLor.y  is  .aias.  wage,  policies  -  With 
the  exception  of  the  cases  above  cited,  *>-  ^'ee-ons  are  rnu- 
formlv  a-ainst  the  maintaining  of  an  action  on  a  wage. 
S  In  Pritchet  ..  Ins.  Co.,  3  Yeates  458,  apparently 
S  t  Le  in  this  country  where  a  wager  policy  -^^^^ 
court  says  "At  the  common  law,  a  person  might  have  insuie 
vXriny  interest.  The  system  of  'f -^^ °  "f  ;;7j 
dictated  the  act  of  19  Geo.  II.  c.  37,  has  been  adopted  by  oui 


1558      DALHY  V.  INDIA  AM»  LONIM>N  LIFK  ASSl'ltANrK  rO. 

courts."  In  Atnoiy  «'.  (liliiuiii,  J  M.is«..  1,  tin*  j.i.umiit  •ii- 
(It'UVortMl  tn  show  that  thr  iiolit  y  was  a  wa^criiij;  |H»liry,  and 
that,  as  sucli,  it  was  valid;  thu  cimrt,  while  holding  timl  thu 
policy  was  a  policy  of  interest  and  not  a  waj^erin^'  |M)li(V,  t«Mik 
occasion  to  say,  "  It  wt>nl«l  seem  a  disgraceful  (Mcujalion  of  the 
courts,  to  sit  in  judgment  In-tween  two  jramblent,  to  decide 
which  was  the  l)etter  calculator  of  chances,  or  whi«di  tiie  more 
cunning'  of  the  two." 

Ami  1)V  Sidi,'wick,  .1.,  *•  This  [as  to  a  waj^er  policy]  im  a  very 
important  (|instion,  an<l  comes  liefore  this  court  for  the  fintt 
time."  lie  apparently  concetles  tluit  at  common  law,  wager 
policies  were  valid,  hut  discourages  them  in  his  opinion  in  this 
case,  as  hostih'  to  puhlic  policy. 

Dana,  Chief  .lustice:  **  .\s  on  a  wager  policy,  my  present 
opinion  is,  that  the  plaintitY  cannot  recttver.  N«)  precedent  of 
such  an  action  supported  here  has  l>t>en  produectl,  and  I  Iwlicvo 
none  can  he  producecl.  We  must,  therefore,  deiide  this  on  gen- 
eral principles  of  justice  and  good  policy.  The  very  fonihlo 
reasons  set  forth  in  the  preand)le  of  the  ID  (Jeo.  II.  e. !}?,  to  which 
I  have  hcfore  referred,  apply  ecjually  t«>  this  and  every  other 
civili/c(l  and  well-goveruiMl  commercial  I'ountry.  Whether 
that  statute  extended  to  this  country  or  not,  is  a  (luestion  not 
necessary  now  lo  he  determined.  I»ut  if  it  were,  and  we  should 
iind  no  precedents  in  our  own  courts  to  overrule  us,  I  should  Ik- 
[)ri'i)aieil  to  say  that,  lus  wager  policies  are  injurious  to  the  morals 
of  tile  citizens,  tend  to  enct)urage  an  extravagant  and  |>i?culiar, 
hazardous  spe<ies  of  gaming,  an<l  to  i-xpose  their  property, 
which  ought  to  l)e  reserved  for  the  iM-netit  of  real  commerce, 
they  t>ught  ni^t  to  receive  the  «()untenan«'e  of  this  court."  See 
Adams  r.  I'cnn.  Ins.  Co.,  1  Kawl.  '.'7:  Wilson  r.  Hill,  3 
Met.  t'.t');  Howard  r.  Alhany  Ins.  Co.,  :5  Den.  'M)\  ;  Sawyer  v. 
Mayl.ew,  ol  Me.  :^08  ;  IValxuly  i-.  Wash.  Ins.  Co.,  :20  Harl).  1330; 
Freeman  r.  l-'ulton  Ins.  Co.,  38  Barh.  217;  Tallman  v.  Atlantic 
Ins.  Co.,  'Id  How.  Vv.  71:  Murdock  r.  CluMiango  Ins.  Co.,  2 
Comst.  210  ;  Hone  r.  Mut.  Ins.  Co.,  1  Sandf.  137  ;  Kagle  Ins.  Co. 
V.  La  Fayette  Co.,  9  Ind.  443 ;  III.  Mut.  Fire  Ins.  Co.  v.  Marseilles 
Mauf.  Co.,  1  Gil.  230;  Gilbert  v.  N.  Am.  Ins.  Co.,*23  Wend.  43; 
^Etna  Ins.  Co.  v.  Kittles,  81  Ind.  96;  Sweeny  v.  Franklin  Ins. 
Co.,  20  Pa.  St.  337 ;  3  Kent's  Com.  371.  And  even  where  two 
tenants  in  common  were  jointly  insured  against  fire,  but  one 
of  them  had  assigned  his  interest  in  the  premises  to  the  other,  it 


DALBY  V.  INDIA  AND  LONDON  LIFE  ASSURANCE  CO.      1559 

was  held  that  they  could  not  maintain  a  joint  action  on  the 
policy ;  Murdock  v.  Chenango  Co.,  2  Comstock  210 ;  while  it 
is  necessary  that  the  insurer  in  order  to  recover  upon  his  policy, 
must  show  an  interest  in  the  subject  of  the  insurance,  the  mere 
fact  that  the  policy  exceeds  in  amount  the  actual  loss  sus- 
tained, would  not  necessarily  cause  the  policy  to  be  construed 
as  a  wager ;  Franklin  Fire  Ins.  Co.  v.  Vaughan,  92  U.  S.  516 ; 
De  Longuemere  v.  The  Phcenix  Ins.  Co.,  10  Johns.  127.  And 
where  there  is  a  disparity  between  the  estimated  value  of  the 
property  insured,  and  its  actual  value,  in  the  absence  of  fraud, 
the  plaintiff  may  recover  the  full  amount  of  his  policy ;  1 
Sumn.  451 ;  Clark  v.  The  Ocean  Ins.  Co.,  16  Pick.  289.  In  the 
latter  case  the  court  lays  down  the  general  rule,  that  if  the 
insured  has  some  interest,  and  the  valuation  is  fair,  and  made 
with  a  view  to  an  indemnity  and  not  for  a  wager,  the  court  will 
not  open  it,  noi*  set  it  aside  on  account  of  an  over  estimate  of 
the  interest  at  risk.  In  Coolidge  v.  Gloucester  Marine  Ins.  Co., 
15  Mass.  341,  where  the  value  of  the  subject  of  the  insurance 
was  uncertain,  it  was  held  that  the  valuation  should  not  be  set 
aside,  although  it  greatly  exceeded  the  actual  value  ;  and  when 
the  valuation  is  made  by  the  insurer,  he  is,  in  the  absence  of 
fraud,  esto})ped  from  disputing  it,  and  is  liable  for  the  value 
fixed,  although  the  real  value  of  the  loss  is  less  than  the  value 
insured ;  Clark  v.  The  Ocean  Ins.  Co.,  16  Pick.  289 ;  Atlantic  Ins. 
Co.  V.  Lunar,  1  Sandf.  Ch.  N.  Y.  91 ;  Forbes  v.  The  Manfg.  Ins. 
Co.,  1  Gray  371 ;  Akin  v.  Ins.  Co.,  16  Martin  (La.)  661 ;  Lover- 
ing  V.  Merc.  Ins.  Co.,  12  Pick.  348  ;  AVhitney  v.  Amer.  Ins.  Co.,  3 
Cow.  210  ;  Davy  v.  Hallett,  3  Cai.  16  ;  Fuller  v.  Boston,  &c.,  Ins. 
Co.,  4  Met.  206 ;  Pritchet  v.  Ins.  Co.,  3  Yeates  458 ;  Gardner  v. 
Col.  Ins.  Co.,  2  Cr.  C.  C.  (U.  S.)  473 ;  Alsop  v.  Com.  Ins.  Co., 
1  Sumner  451 ;  Carson  v.  Mar.  Ins.  Co.,  2  Wash.  C.  C.  (U.  S.) 
468 ;  Marine  Ins.  Co.  v.  Hodgson,  6  Cr.  (U.  S.)  206 ;  Patapsco 
Ins.  Co.  V.  Coulter,  3  Pet.  (U.  S.)  222 ;  Griswold  v.  Union,  &c., 
Ins.  Co.,  3  Blatch.  (U.  S.)  C.  C.  231 ;  Rowland  v.  Ins.  Co.,  2  Cr. 
C.  C.  (U.  S.)  474.  See  Wolcott  v.  Eagle  Ins.  Co.,  4  Pick.  429. 
(6)  Insurable  interest.  —  The  interest  need  not  be  that  of  a  legal 
title,  but  may  be  such  only  that  the  insured  is  pecuniarily  inter- 
ested in  the  preservation  of  the  subject  of  insurance.  In  Car- 
ter V.  The  Humboldt  Ins.  Co.,  12  la.  287,  the  plaintiff  was  held 
entitled  to  recover  on  a  policy  which  he  had  effected  to  protect 
his  mechanic's  lien  on  a  hotel  and  the  court  in  that  case  says: 


1!JG0      I»ALl:V   V.   IMUA  AND  l.(»Nli<»N    I, III!  ASSIMtANrK  CO. 

"The  priiicijnil  cjiu'stion  is,  wlinlui  .i  in'i  ii.iini  >  mn  i«.  an 
insiuiiblt'  iiitcii'st.  Insuiaiuf  is  a  (MHitniit  (»f  iii(li'iiiiiity  with  it 
j)ers()n  who  has  an  inlfirst  in  thf  prustTvatioii  of  j)io|)erty,  or  a 
limitfd  (|U.ilili(<l  iiitoifsl  in  propt-rty,  <»r  any  ri-asonahh'  exiK-c- 
tatioiis  of  property  or  atlvaiita<(e  to  U-  (U-rivcd  tlu-refroin. 

''It  may  he  j^enenilly  said,  that  any  interest  may  Ih'  insured, 
it"  tht!  peril  against  which  instirance  is  niaih-  wonhl  hrinj^  upon 
the  insureil  l>y  its  immediate  and  dirrrt  idTi-ct  a  |MM-uniary  h»ss." 
See  Franklin  Ins.  Co,  r,  Coiites,  14  Mil.  l*H'» ;  Proteetion  Ins. 
Co.  r.  Hall,  1.")  15.  Mon.  (Ky.)  411  ;  Kohrkuh  r.  (M>rnianiii  P'ire 
Ins.  Co.,  i\2  N.  V.  47;  Sansom  r.  Hall,  4  Dall.  4;V.»;  Ins.  Co.  v. 
liaiini,',  l!0  Wall.  l.')t»;  Fenn  r.  New  Orleans  .Mnt.  Ins.  Co.,  58 
(Ja.  oTS;    Kohrhaich  r.  .Klna   Iiis.  Co..  1     T.  \  C.  (  N.  V.)  'Mi\K 

A  eommission  nu-rchant  has  an  insurable  interest  in  the 
Ljoods  ("onsi^ned  t<»  him;  or  any  pei'son  having  |M)ssessi«»n  under 
a  contract  that  may  afl'iud  him  profit;  KoliinsAn  r.  N.  \.  Ins. 
Co.,  -  Cai.  3 ')7  ;  Kon^duii-st  r.  Star  Ins.  Co.,  l'.»  la.  .'5«»4.  So 
with  warehousemen,  carriers,  and  Ixiilees  of  pM>ds  where  a  Umm 
would  pecuniarily  aft'eet  them  ;  Savage  r.  Corn  Ins.  Co.,  4  Hikhw. 
1  ;  atVnnicd  :'.•!  X.  V.  T..').'),  \'2  Harh.  ;V.>.') ;  Putnam  v.  Mere.  M. 
Ins.  Co.,  .")  Met,  :is»;;  French  v.  Hope  Ins.  Co.,  ir.  Pick.  Hl»7. 
So  with  a  shi'iitT  in  j^oods  he  seizes;  White  v.  .Madison,  2t> 
N.  ^.  117:  Warren  r.  Fire  Insurance  Co.,  Ul  la.  4«J4.  .\n 
e(|Mitai)lc  intcii'st  is  an  insurahle  interest;  Swift  r.  N't.  .Mut. 
I'irc  Ins.  Co..  Is  \'i.  'M)'t;  where  it  was  held  that  a  |K)liey,  i.ssued 
t(t  one  who  had  po.s.st'.ssii>n  of  real  estate  under  a  defective  duetl, 
hut  who  was  so  situated  that  he  could  com|Md  in  e<|uity  a  valid 
eunvi-yance  from  the  holder  of  the  lejjal  title,  was  valiil.  See 
Curry  v.  Com.  Ins.  Co.,  \i>  Pick.  ').S/».  Kven  a  tres|)asser,  it 
seems,  has  an  insurahle  interest,  which  cannot  \n;  disputed  hv 
the  insurance  company;  Mayor,  &e.  v.  Brooklyn  Ins.  Co.,  41 
liarh.  'I'M.  A  nmrtga^ee  may  insure  his  nmrt^'a^e  interest, 
thouj^h  prohahly  not  U-yond  it  ;  Davis  v.  (^uiney  Mut.  Fire  Ins. 
Co.,  10  Allen  il:{;  H.dhn.ok  v.  Amer.  Ins.  Co.,  1  Curtis  C.  C. 
103;  Fox  c.  Phienix  Ins.  Co..  ."i'J  .Me.  333.  A  inortgaj^or  may 
insure  his  property  to  its  full  value,  whether  the  mortgage 
was  made  Ind'ore  or  after  the  poliiy  ;  French  »•.  Kogei-s,  1»>  N.  H. 
177;  see  Carpenter  r.  Prov.  Ins.  Co.,  1»)  Pet.  VX'*;  and  even  if 
his  equity  of  redemption  has  l^een  seized  on  execution ;  Strong 
r.  Manf.  Ins.  Co.,  10  Pick.  40 ;  and  .so  long  as  an  equity  re- 
mains   in    luni.  even    after    foreclosure    until   tlie   title   passes. 


DALBY   V.   INDIA  AND  LONDON   LIKE  ASSURANCE  OO.      1561 

Stevens  v.  III.  Iiis.  Co.,  43  111.  327.  A  mortgagor  and  mortgagee 
may  each  insure  the  same  building,  and  their  [)articular  interest 
in  the  property  insured  need  not  be  described ;  Traders'  Ins. 
Co.  IK  Robert,  9  Wend.  405;  Strong  v.  Manf.  Ins.  Co.,  supra; 
Curry  v.  Com.  Ins.  Co.,  supra;  Allen  v.  Franklin  Ins.  Co.,  9 
How.  Pr.  501.  Conveyances  in  the  nature  of  a  mortgage  leave 
an  interest  in  the  grantor  sufficient  to  support  a  policy  of  in- 
surance ;  Holbrook  v.  Amer.  Ins.  Co.,  1  Curtis  C.  C.  193 ;  Rus- 
sell V.  Southard,  12  How.  139 ;  Tittemore  v.  Vt.  Mut.  Fire  Ins. 
Co.,  20  Vt.  546;  Higginson  v.  Dall,  13  Mass.  96;  Gilbert  v. 
No.  Am.  Ins.  Co.,  23  Wend.  43 ;  Bartlett  v.  Walter,  13  Mass. 
267 ;  Lazarus  v.  Com.  Ins.  Co.,  5  Pick.  76.  A  vendee  in  posses- 
sion under  an  executoiy  contract  to  purchase  has  an  insurable 
interest ;  Shotwell  v.  Jefferson  Ins.  Co.,  5  Bosw.  447 ;  Draper 
V.  Com.  Ins.  Co.,  21  N.  Y.  378  ;  Col.  Insurance  Co.  v.  Lawrence, 
2  Pet.  25;  vEtna  Ins.  Co.  v.  Miers,  5  Sneed  (Tenn.)  139;  Ayres 
V.  Hart.  Ins.  Co.,  17  la.  176  ;  McGivney  v.  Pluenix  Ins.  Co.,  1 
Wend.  85.  A  person  liable  as  indorser  or  as  a  bondman  for 
safe  keeping  of  property  has  an  insurable  interest  to  the  extent 
of  his  liability ;  Insurance  Co.  v.  Chase,  5  Wall.  509 ;  Russell 
V.  Union  Ins.  Co.,  4  Dall.  421 ;  Fireman's  Insurance  Co.  v. 
Powell,  13  P>.  Mon.  (Ivy.)  311  ;  Strong  v.  Man.  Ins.  Co.,  10 
Pick.  40;  Williams  v.  Roger  Williams  ins.  Co.,  lOT  Mass.  377. 
Also,  tliosc  generally  liable  by  statute,  or  by  common  law, 
or  by  contract,  for  the  safe  keeping  of  })ro|)erty  of  another, 
may  })rotect  themselves  by  insurance  ;  as  railroad  companies ; 
Eastern  R.  R.  Co.  v.  Relief  Insurance  Co.,  105  Mass.  570 ; 
Monadnock  R.  R.  Co.  v.  Manf.  Ins.  Co.,  113  Mass.  77 ;  com- 
mon carriers;  Chase  v.  Wash.  Ins.  Co.,  12  Barb.  595;  bailees 
having  the  goods  of  another  for  repairs  or  manufacture ; 
Getchell  v.  yEtna  Ins.  Co.,  14  Allen  325.  A  mechanic's  lien 
constitutes  an  insurable  interest.  See  12  la.  371,  supra  ;  Frank- 
lin, &c.,  Ins.  Co.  V.  Coates,  14  Md.  285 ;  Protection  Ins.  Co.  v. 
Hall,  15  B.  Mon.  (Ky.)  411  ;  Merchants'  Insurance  Co.  v.  Maz- 
ange,  22  Ala.  168. 

(c)  Rule  of  damage  and  adjustment  of  loss.  —  111  the  absence 
of  agreement  as  to  value  of  interest,  the  value  will  be  limited 
to  simple  compensation  for  actual  loss  ;  lirinley  v.  Nat.  Ins. 
Co.,  11  Met.  195;  and  after  the  compensation  is  received,  no 
matter  from  what  source  it  comes,  further  action  against  the 


Ifiti-J       DALIIV    V.   INIiI.V   AM»  l.nSImS    l.Ui:  ASS  U  It  A  NT  K  TO. 

iiisuivr  is  piL'tlutleil ;  C'laij,'  r.  Muig;iti«)y«l,  i  ^  •ai.-,  Inl.     >i-e 
Wood  on  Kile  liisiiiunci',  tliiip.  xv. 

(</)  Coutinuity  of  iiitereet.  — The  interest  must  eXlMt  at  the 
time  of  the  h)ss;  Wilson  v.  Hill,  •}  Met.  M  ;  Ciiiroll  r.  Boston 
ALitine  Insnnince  Co.,  H  Miuss.  .')1.j;  Stetson  r.  Muss.  Mutual 
Fire  Ins.  Co.,  4  .Muss.  -ViO ;  Mur(lo«-k  r.  ChenunjfO  (\».  \u». 
Co.,  nupi-a  :  Krenih  v.  Rollers,  !♦»  N.  11.  177;  Amorv  v.  Gilmiin, 
xtipru;  Seiimiins  r.  Loring,  1  .Mas.  ( l'.  S.)  1:27;  :5  Kent'.s  Com. 
.'571,  2(1  .\m.  L.  C.  oth  ed.  ssl  ;  Fowler  v.  ln<l.  Ins.  Co.,  2»» 
N.  V.  [21  .Mlhou'^h  a  temi)oiiiry  suspension  <»f  interest  will 
not  invalidate  thf  {loliey  ;  Uex  r.  Ins.  Co.,  2  IMula.  Il')7  ;  Lane 
r.  .Me.  .Mut.  Fire  Ins.  Co.,  3  Fairf.  (.Me.)  44;  W.mmI  v.  Uut- 
lands,  Ace.,  Ins.  Co.,  M  Vt.  .Vil';  Taylor  v.  L<iwell,  Ji  Mass.  :531 ; 
Worthini^ton  r.  lirai-se,  \'2  Alhn  :{x*J ;  N.  K.,  \f.,  Ins.  Co.  r. 
Shettler,  :5H  111.  ItW,;  Kinp^h-y  r.  N.  K.,  A:e.,  Ins.  Co..  M  Cush. 
:V.»:i;  (;onlon  r.  .Ma.Hs.  F.  \  .M.  Insuranee  Co.,  2  I'iek.  241>; 
La/arus  /•.  Cuiii.  Ins,  Co.,  .">  I'iek.  7»»  ;  Stronjj  r.  Insuranee  Co., 
10  I'i.k.  40;  .la.k.son  v.  .Mass.  .M.  F.  Ins.  Co.,  2:5  I'iek.  41>^; 
lloojur  r.  Hudson  Kiv«'r  Ins.  Co.,  1")  I5arl».  41:5;  s.  e.  atVirmefl 
IT  N.  ^  .  124.  Hut  see  the  eiuse  of  Coekerill  i'.  Cineinnati  Ins. 
(  ....  It;  ().  14s. 

II.    .Ix  to  Lift-  InHumnrf. 

(rt)  Interest  In  the  Insured  Is  necessary.  —  It  is  well  settled  that 
the  insurer  in  a  life  poliiv  niu.st  h.ive  some  interest  in  the  in- 
sured. In  Sini,deton  v.  St.  Louis  .Mut.  Ins.  Co.,  GtJ  .Mo.  63, 
where  a  ui'phew  insured  the  life  of  his  unele,  it  wa.H  held  that 
the  plaintiff  had  not  an  insurahh-  interest  in  the  life  and  eouUl 
not  reeover  ;  Ivusr  r.  Mut.,  vVc,  Hrnetit  .V.ssn.,  2:5  N.  V. /iltl.  See 
(Juardian  Ins.  Co.  v.  H«>i,Mn,  SO  111.  :5') ;  iJenefit  Assn.  r.  Hoyt, 
4(;  Mieh.  47:5.  Sim-  Clark  v.  Alh-n.  11  K.  I.  4:5H;  Trenton,  .Ve., 
Ins.  Co.  V.  .Johnson.  4  /al»r.  ')7ti. 

(A)  As  to  the  nature  and  extent  of  the  interest.  — •  The  law 
seems  well  setth-d  that  in  eases  of  tire  and  marine  insuranee 
the  interest  of  the  insurer  in  the  sidijeet  of  insuranee  must  Ije 
such  that  it  can  be  estimated  in  dollars  and  cents ;  in  other 
words,  that  in  these  cases  the  policy  is  a  contract  of  indemnity; 
but  in  cases  of  life  insurance,  while  it  seems  that  the  interest 
of  the  insurer,  or  of  him  who  seeks  to  enforce  the  contract, 
must  be,  in  a  certain  sense,  a  pecuniary  interest,  the  measure 
and  interpretation  of  the  pecuniary  interest  is  of  a  much  wider 


DALBY  V.  INDIA  AND  LONDON  LIFE  ASSURANCE  CO.      1563 

scope ;  in  other  words,  a  policy  of  life  insurance  is  a  valued 
policy,  and  if  the  relationship  between  the  parties  is  such  as 
would  support  a  gift  or  grant  at  common  law,  so  that  the  im- 
putation of  a  wagering  intention  is  not  prima  facie  raised,  the 
contract  can  be  enforced ;  Lord  v.  Dall,  12  Mass.  115  ;  Loomis 
V.  Eagle,  &c.,  Ins.  Co.,  6  Gray  396 ;  ^tna  Life  Ins.  Co.  v.  France, 
94  U.  S.  (4  Otto)  561 ;  Grattan  v.  Nat.  Life  Ins.  Co.,  15  Hun 
74;  Hoyt  v.  N.  Y.  Life  Ins.  Co.,  3  Bosw.  440;  McKee  v. 
Phoenix  Ins.  Co.,  28  Mo.  383  ;  Eq.  Life  Assurance  Soc.  v.  Pat- 
erson,  41  Ga.  338 ;  St.  John  v.  Amer.,  &c.,  Ins.  Co.,  2  Duer  419. 
See  Stevens  v.  Warren,  101  Mass.  564.  A  creditor  has  an  in- 
surable interest  in  the  life  of  his  debtor  to  the  amount  of  the 
debt ;  Morrell  v.  Trenton  Mut.  Life  &  Fire  Ins.  Co.,  10  Cush. 
282;  Rawls  v.  Am.  Life  Ins.  Co.,  36  Barb.  357,  27  N.  Y.  282. 
So  the  debtor  may  insure  his  own  life  to  an  amount  beyond  the 
debt  for  the  benefit  of  his  creditor,  the  balance  over  the  debt 
enuring  to  such  parties  as  the  debtor  may  designate ;  Am.  Life, 
&c.,  Ins.  Co.  V.  Robertshaw,  26  Pa.  St.  189;  and  it  has  been 
held  in  New  York  that  one  member  of  a  firm,  who  furnished 
the  capital  in  the  business,  could  insure  the  life  of  his  partner 
on  the  ground  that  the  death  of  that  partner  would  imperil  the 
capital  invested  ;  Valton  v.  Nat.,  &c..  Assurance  Soc,  22  Barb.  9  ; 
affirmed,  20  N.  Y.  32.  It  seems  to  be  well  settled  that  where 
one  has  an  expectation  of  pecuniary  profit  through  the  execu- 
tion of  a  contract  which  the  death  of  one  of  the  parties  would 
defeat,  he  has  an  insurable  interest  in  such  party's  life.  And  I'j 
seems  to  be  immaterial,  so  long  as  the  profits  anticipated  are 
necessarily  uncertain  in  amount,  what  amount  is  insured.  Such 
a  policy  is,  to  this  extent,  a  valued  policy,  the  amount  of  the 
jjolicy  being  an  agreed  statement  of  the  amount  at  risk,  which 
cannot  afterwards  be  denied  by  the  company;  Bevin  v.  Conn. 
Mutual  Life  Ins.  Co.,  23  Conn.  244;  Morrell  v.  Trenton,  &c., 
Ins.  Co.,  10  Cush.  282,  supra  ;  Hoyt  v.  N.  Y.  Life  Ins.  Co.,  3 
Bosw.  440 ;  Miller  v.  Eagle,  &c.,  Ins.  Co.,  2  E.  D.  S.  (N.  Y.) 
C.  C.  P.  268.  See  Forbes  v.  Amer.  Mut.  Life  Ins.  Co.,  15  Gray 
249. 

(c)  Continuity  of  the  interest.  —  The  principal  case  settled  the 
law  in  England,  that  if  an  insurable  interest  existed  in  the  in- 
sured at  the  inception  of  the  contract,  the  provisions  of  the 
statute,  14  Geo.  III.  c.  48,  have  been  complied  with,  and  it 
will  not  defeat  his  risrht  of   recoverv  if   that  interest  is  lost 


1504      I».M.l:V   V.   INDIA   AND  LmNDmN   LIKK  A»»IUAN<'K  CO. 

Itcfoiv  the  (It'iitli  iiisiind  ;i;^Minsi  occurj*.  Wh»'tlu*r  this  rule  ol> 
liiiiis  in  tliL'  I'liitrtl  Slates  lias  la-en  (louhtt'tl  ;  Miit.  Lite  In?*.  Co. 
t'.  Wager,  27  IJaib.  .■}.')4  ;  Kennedy  t'.  N-  Y.  Life  In.surunce  Co.,  10 
La.  An.  H()'.>;  hut  wliile  it  lias  not  Ix-en  distinclly  luljudieated 
that  the  insurahle  interest  need  exist  only  iit  the  ineeption  of 
the  contract,  there  are  dicta  which  whow  the  favor  with  which 
this  view  that  a  continuing  interest  in  a  life  policy  is  not  neces- 
sary, is  regarde<l  hy  eminent  justices;  Phtenix  Miit.  I^ife  Ins. 
Co.  V.  Hailcy,  Vi  Wall.  ( C.  S.)  «;i»; ;  (Jrattan  i'.  Nat.  Life  Ins. 
Co.,  l'>  limi  14,  Hupra  ;  X'alton  r.  Nat.  Loan  l-'tiiid  Lif««  .\.«wn. 
Co.,  -Ill  Hari>.  (N.Y.)U;  St.  .John  r.  Am.  .Mut.  Ins.  Co.,  l:i  N.  Y. 
.')!  ;  Conn.  Ins.  Co.  v.  Siharfer.  '.>4  C  S.  4'»T.  .\n<l  si-e  UawLs 
r.  Anur.  .Mut.  Lift-  Ins.  Co.,  liT  N.  Y.  l'^J  :  Looniis  «•.  Kagle  Life 
Ins.  Co.,  ♦)  (iray  lii'D ;  Conn.  .Mut.  Lite  Ins.  Co.  t'.  Schaefer,  15 
A.  L.  J.  :VM. 


ROSE   V.   HART. 


TRINITY,  58  GEO.  3.  —  C.  P. 

[reported   8   TAUXT.    449.] 

Trover  for  cloths  deposited  by  the  bankrupt,  previously  to  his 
bankruptcy,  with  the  defendant,  a  fuller,  for  the  purpose  of 
being  dressed :  Held,  that  the  defendant  was  not  entitled  to 
detain  them  for  his  general  balance  for  such  work  done  by  him 
for  the.  bankrupt  previously  to  his  bankruptcy ;  for  that  there 
was  no  mutual  credit  untJiin  stat.  5  G-.  2,  c.  30,  s.  28. 

Trover  for  cloths  deposited  by  the  bankrupt,  previously  to 
his  bankruptcy,  with  the  defendant,  who  was  a  fuller,  for  the 
purpose  of  being  dressed.  At  the  trial,  before  Holroyd,  J.,  at 
the  Salisbury  Spring  Assizes,  1817,  it  appeared  that  when  the 
cloths  were  so  deposited  there  was  a  debt  due  from  the  bank- 
rupt to  the  defendant  for  other  cloths  dressed  by  the  latter. 
After  the  bankruptcy  the  plaintiffs  tendered  the  sum  due  for 
dressing  the  cloths  in  question  to  the  defendant,  who  refused 
to  deliver  them  up,  without  payment  of  the  Avhole  debt  due  to 
him  from  the  bankrupt.  They  then  brought  their  action.  For 
the  defendant  it  was  contended  that  the  case  came  within  the 
principle  laid  down  in  Olive  v.  Smith  C«),  and  that  he  was 
entitled  to  retain  the  cloths  for  his  general  l)alance.  The  jury 
found  a  verdict  for  the  plaintiffs;  and,  Holroyd,  J.,  having 
reserved  the  point. 

Pell,  Serjt.,  in  Easter  Term,  1817,  moved  for  a  rule  nisi  to 
set  aside  the  verdict  and  enter  a  nonsuit,  on  the  ground  urged 
at  the  trial,  and  he  cited  Ex  parte  Beeze  (6),  as  in  point,  and 

(a)  5  Taunt.  56.  Q>)  1  A.tk.  228. 

1565 


1. ',(;»;  l:(»SK    V.    HAUT. 

()l»sfivr(l,  thiit  th«'  i)iin<ii)lt'  of  llu*  rases  which  contnulul**! 
tlu;  (huaiiiK'  theif  laiil  (l»»\vii  \v  i>  \i.  ioii>,  iii.i>iiiutlj  us  it  wml 
to  destroy  the  hiw  of  lien. 

Gibbn,  ('.  .1.—  Yoii  are  aware  «if  the  ea.s«*  of  (Sreen  v.  Far- 
mer {a^,  wliich,  hy-the-l>y,  I  may  say  has  Ijeeii  frenueiitly  din- 
re|,'ar(hMl.  In  a  case  in  which  I  had  the  brief,  and  in  which 
case  Lord  Ashfmrfon  was,  a  s|H'cial  custom  for  dyen*  to  Imve 
their  1,'cncral  lien  was  proved;  and  notwithstantlin^  Grren  v. 
Fiirnur,  that  custom  was  acted  upon  in  that  ciise,  and  has  U*en 
many  times  since  recoj^nised.  The  case  Ar  pnrtf  lieezf  is  cer- 
tainly contradictory  to  the  case  Kr  pnrtf  O.-k'-mhu  (ft),  sulwe- 
(piently  decided.  The  (juestion  is  of  the  utmost  importance, 
and  we  are  quite  «)pen  to  hear  it  di.sciis.scd.     Take  your  rule. 

Kule  nini  granted. 

In  the  f(»llowinp  Trinity  term  cau.He  was  shown  by 
I.ttiK,  Serjt..  who  conten»led  that  Lord  Utirdtrickf,  in  Ex  parte 
Or/cfiiilen,  rcco^Miised  by  Mittmjitlii,  ('.  .L,  in  itrfen  v.  Farmer, 
had  much  narrowed  the  extensive  construction  whi<h  he  had 
put  in  F.r  pnrfe  Ditzr,  mi  the  words  "mutual  credits,"  in  the 
Stat. :')  (i.  2,  V.  'MK  s.  lis,  nnd  had  ex»  hulcd  cases  like  the  pre.sent 
from  its  o[)eration  ;  ami  referred  to  the  liise  of  Cliane  v.  \Ve»t- 
7nori' {<•),  where  a  point  similar  to  the  present  was  made,  but 
the  court,  thinking  that  that  ca.se  di<l  not  involve  the  jjuestion 
of  nuitual  crcilits,  pave  judi^m'Ut  on  tlu*  point  in  lien.  He 
also  cited  liinhrnoil  v.  Hapfnief  ( il),  iind  i-ontended,  that  the 
<lecision  in   O/iv,'  v.  Smith  did  not  apply  to  the  present  ra.se. 

I*,JI  was  then  heard  in  stipport  of  the  rule.  If  the  defend- 
ant had  sohl  these  cloths,  and  the  assignees  had  brouj^ht  their 
action  for  moiu'y  had  and  received,  they  must  clearly  have 
allowed  to  the  defendant  the  amount  of  their  general  balance 
au^ainst  the  bankrupt,  before  they  coidd  have  recovered  the 
difference,  if  any,  from  the  tlefendant.  .Mutual  credit  is  u.sed 
as  synonymous  with  mutual  trust.  "  Where  tluMe  is  a  tnist 
between  two  men,  on  each  side,  that  makes  a  mutual  cre<lit "  (/•). 
The  case  Er  parte  Deeze,  and  the  whole  reasoning  of  Lord 
Hnrdicicke  on  the  subject  of  nuitual  credit  in  that  case  (which 
is   recoe^uised   and   confirmed   in    Fmx'h   v.   Fenn,  in    Smith    v. 

(«)  4  Burr.  2214.  (d)  .'.  Price.  503. 

(h)  1  .Vtk.  2:55.  (e)  Per  linllpr,  .!..  French  v.  Fenn, 

(c)  :>  M.  &  S.  180.  Co.  B.  L.  53(),  7th  ed. 


ROSE   V.    HART.  1567 

Hodson  (a),  and  both  by  Gibbs,  J.,  in  his  statement  of  his 
opinion  at  the  trial  in  Oh've  v.  Smith  (^),  and  subsequently,  by 
the  whole  court,  in  their  final  decision),  is  most  strong  for  the 
defendant ;  but  if  the  case  Ux  parte  Oekeiiden,  in  which  no 
judgment  was  given,  is  to  be  upheld  against  the  case  JEx  p>cirt^ 
Deeza^  confirmed  over  and  over  agam  by  subsequent  decisions, 
then  it  is  admitted,  that  the  defendant  cannot  succeed. 

It  is  true,  that  this  is  an  action  of  trover,  and  no  case  of  this 
precise  nature  has  been  decided;  but  the  plaintiffs,  by  their 
choice  of  action,  can  never  prevent  the  defendant  from  having 
the  benefit  of  his  statutable  lien.  In  Jennings  v.  Cundall  (c), 
the  plaintiff  shaped  his  case  in  tort,  in  order  to  deprive  the 
defendant  of  the  benefit  of  his  infancy ;  but  the  defendant 
pleaded  his  infancy,  and  it  was  holden  a  good  plea.  In  Ex 
parte  Deeze,  Lord  ITardwicke  says,  "  It  is  very  hard  to  say  that 
mutual  credit  should  be  confined  to  pecuniary  demands,  and 
that  if  a  man  has  goods  in  his  hands  belonging  to  a  debtor  of 
his,  which  cannot  be  got  from  him  without  an  action  at  law  or 
bill  in  equity,  it  should  not  be  considered  a  mutual  credit." 
"  There  have  been  many  cases  which  the  clause  of  the  Act  has 
been  extended  to,  when  an  action  of  account  would  not  lie,  nor 
could  this  court,  upon  a  bill,  decree  an  account."  These  strong 
expressions  acquire  double  strength  when  the  judgment  of 
Mansfield,  C.  J.,  in  Olive  v.  Smith,  is  referred  to.  "  I  should 
have  thought  that  the  words  of  the  statute  meant  only  money 
transactions;  but  if  the  extension  of  mutual  credit  be,  as  it 
has  been  contended,  a  mistaken  doctrine,  the  mistake  is  so 
deeply  rooted  that  it  would  be  rash  to  overturn  it ;  and  there 
is  a  great  deal  of  justice  in  the  determination  at  which,  not 
only  the  Court  of  King's  Bench,  but  the  Court  of  Chancery, 
have  arrived  on  this  point."  This  is  hardly  saying  less,  than 
that  the  statute  extends  to  cases  of  trover,  and  the  whole  judg- 
ment lays  down  the  rule  of  extension  on  the  broadest  ground ; 
a  rule  resting  as  much  on  sound  law  as  it  does  on  justice. 
(^Burrough,  J.  Is  it  the  true  meaning  of  the  Act,  to  extend 
the  doctrine  of  mutual  credit  to  cases  where  the  goods  are  not 
ultimately  to  be  turned  into  money  ?  —  Dallas,  J.  Where  the 
goods  are  specifically  to  remain  as  goods?)  Lord  Rardwiche,  in 
Ex  parte  Beeze,  expressly  goes  on  that  ground.  {Burroiigh,  J. 
In  Lanesborough  v.  Jones  (d),  which  was  a  decision  on  stat.  4 

(a)4T.  R.  211.  (c)8T.  R.  335. 

(h)  5  Taunt.  58.  {d)  1  Peere  Wms.  325. 


l')68  iiosK  V.  HAiJT. 

Anne,  c.  17,  s.  11,  the  juil^Mnt-nt  of  Lord  Chantellor  Cowper 
Wi-nt  on  the  ground  thiit  then;  WiLs  ii  phiin  nuitiuil  credit.)  In 
Fi'iwh  V.  Fen/i,  if  trover  h;id  \h'vu  hrou^lil,  it  nm.Ht  have  U-eii 
brou«^ht  on  the  same  grounil  on  whicli  it  iiuxy  Ixj  brought  here. 
{ litin'oui/h^  J.  No.  In  French  v.  Ffnn,  the  |Harl.s  were  heiit 
out  on  an  express  contract  to  Ixj  sold,  and  tliou^h  the  saih*  wsis 
after  the  bankrupt*  y,  tlie  contract  wiw  before  the  Umkruptcy. ) 
In  Smith  V.  //'*</x'</j,  the  iissi^iUH'S  niij^ht  have  brought  trover;  and 
the  whole  judgment  in  tiiat  case  goes  to  sliow  thait  if  the  action 
had  Immmi  so  shaped,  the  assignees  miglit  have  recovered.  (  Iril-hn, 
C.  J.  The  judgment  of  the  court,  in  Smith  v.  Iloihon,  as  to 
the  probable  suc<"ess  of  the  a.ssignees,  if  thev  haul  brought 
trover,  goes  on  the  ground  of  fraiid  an*!  undue  prefi'rence, 
with  whirli  that  case  was  tinctured.)  Tlie  hinguage  of  the 
cnurls,  in  AV  /mr/f  /fffzt-,  Fffni'h  v.  Ffntt,  and  Olivf  v.  Smith, 
is  rlrar  to  show  that  the  form  of  action  can  make  no  difTi-rence ; 
and  the  plaintiffs  (d)  nre  not  to  l)e  shut  out  from  the  IxiUetit  of 
the  rule  so  broadly  laid  down  and  so  strongly  conlirmed,  lie- 
cause  this  is  the  tirst  action  »)f  trover  for  goods  in  spe<  !-•  oii 

which  the  point  has  arLsen. 

Cur.  adv.  vult. 

And  iiiiw,  the  case  having  stood  over  till  this  clay, 

GihltH,  ('.  .1.,  delivered  the  judgment  of  the  court. 

This  was  an  action  of  trt)ver  for  cloths  left  by  Smart,  Ixjfore 
his  i)ankrui)t(V,  with  tiie  d»'fendant,  who  wjvh  a  fulU-r,  to  Ixj 
tlressed. 

There  was  tiicii  ii  balance  due  fmni  the  b.iiikru[)i  to  liu-  de- 
fendant for  work  done  tm  other  cloths. 

The  assignees  tendered  to  tin;  defendant  the  sum  due  for 
work  <lone  on  the  cloths  in  his  posst-ssion,  and  demanded  them 
from  him;  but  the  defendant  refused  ti)  diliver  them  up» 
unless  he  was  paid  his  general  balance. 

The  question  was.  Whether  he  were  entitled  to  retain  them 
for  that  balance?  And  Mr.  Justice  Holroi/il,  liefore  whom  the 
cause  was  tried,  at  the  Spring  assizes  for  Salisbury,  IHIT,  re- 
served the  point  for  the  opinion  of  the  court ;  and  we  are  of 
opinion  that  the  defendant,  who  received  these  cloths  for  the 
purpose  of  dressing  only,  had  no  right  to  detain  them  for  his 
general  balance. 

(a)  Sic  ill  the  report,  hut  ought  to  be  defendant. 


KOSE   Y.    HART.  1669 

He  founds  his  claim  on  the  ground  of  mutual  credits,  men- 
tioned in  stat.  5  Geo.  2,  c.  39,  s.  28,  and  the  construction  which 
has  been  put  upon  that  statute. 

The  case  Ex  parte  Deeze  (a),  is  not  distinguishable  from  the 
]3resent.  There,  a  packer  claimed  to  retain  goods,  not  only  for 
the  price  of  packing  them,  but  for  a  sum  of  500/.  lent  to  the 
bankrupt  on  his  note ;  and  Lord  Hardwicke  determined  that  he 
had  such  a  right,  on  the  ground  of  mutual  credits,  to  which,  he 
gives  a  very  extensive  effect,  and  says  that  the  clause  relative 
to  them  has  always  received  a  very  liberal  construction. 

This  doctrine,  if  it  were  supportable,  would  apply  directly  to 
the  present  case,  and  Avould  establish  the  defendant's  right  to 
retain  for  his  general  balance. 

But,  in  the  case  Ex  parte  Ockenden^  which  came  before  Lord 
Hardivicke  about-  six  years  after  the  former,  he  very  much  nar- 
rows the  extensive  construction  that  he  had  before  put  on  the 
Avords  "mutual  credits,"  in  the  statute  5  G.  2,  c.  30,  s.  28, 
-and  determines  in  express  terms,  that  a  case  like  the  present 
does  not  fall  within  them. 

That  the  cases  Ex  parte  Deeze  and  Ex  parte  Ockenden  are 
accurately  reported  by  Atkyns,  we  have  the  authority  of  Lord 
Mansfield^  in  G-reen  v.  Farmer  (J),  who  confirms  them  by  his 
own  notes. 

It  appears,  therefore,  that  the  final  opinion  of  Lord  Hard- 
zvleke,  after  a  very  full  consideration  of  the  subject,  would 
exclude  the  present  case  from  the  protection  of  the  statute  as 
a  mutual  credit,  though  he  admits  that  the  words  "mutual 
credits  "  have  a  larger  effect  than  mutual  debts,  and  that  under 
them  many  cross  claims  may  be  allowed  in  cases  of  bankruptcy, 
which  in  common  cases  would  be  rejected. 

I  am  not  aware  of  any  later  decision  upon  tliis  subject,  until 
the  case  of  French  and  another,  Assignees  of  Cox,  v.  Fenn,  which 
occurred  in  the  year  of  1783,  and  is  very  fully  and  correctly 
reported  in  Cooke's  Bankrupt  Laws  (c). 

Cox,  the  bankrupt,  was  indebted  to  Fenn,  and  had  entrusted 
him  with  his  share  or  interest  in  a  string  of  pearls,  to  be  sold  by 
Fenn,  and  the  profit  on  such  share  to  be  paid  to  Cox.  Fenn 
sold  the  pearls  after  Cox's  bankruptcy,  and  Cox's  assignees 
brought  an  action  against  Fenn  for  his  share  of  the  proiit.  On 
the.  part   of   the    defendant  it  was   insisted  that  there  was  a 

(a)  1  Atk.  228.  (ft)  4  Burr.  2222.  fc)  536,  7th  ed. 


1.070  U08K    V.    HAICT. 

iiitiliiul  i;rciiit,  tliou^'li  Mot  ii  iniitUiil  ilrlit,  ;il  tin-  tiiiu*  of  tlti* 
l)iiiikiupU'y,  and  that  mi.-  (.ml. I  n.it  U-  iltiii.iii.l.il  without  siiiU- 
fyin^  thu  other. 

The  (h)«tiiiio  of  Loul  HarUu'ii'kf  in  AV  purtr  Urete  WiW 
relied  on  hy  the  counKel,  iind  seenieil  to  U*  fully  adopted  by  thu 
court,  without  adverting  to  the  <iualitication  >vhi«h  it  received 
from  the  eii.se  fJr  partf  Orkemlen  :  and  i4>ply>ng  tlie  diK'triiie  to 
the  case  iK-fore  them,  they  <letenuined  that  Fenn  was  pn>teeted 
fioni  the  claim  of  ('ox's  assiijnees  l»y  the  ilau.se  o(  unitual 
credits. 

Fniu'fi  V.  Finn  h;us  U-i-n  followed  hy  a  string  of  eaiLse.s,  run- 
ning throuj;h  a  periotl  (»f  more  than  thirty  years,  all  professing; 
to  depeml  upon  it,  some  of  them  eonUiining  t)ie  fullest  approUi- 
tion  of  Ex  parte  Ihfze  from  tin?  Itencli. 

Whatever  I  mi<;ht  think  of  tiie  origimil  decLsion,  I  could  not 
persuatle  myself  t»)  hreak  in  upon  a  clas.s  of  eases  so  lonj^  estab- 
lished ;  an<l  if  they  could  not  U;  supported  witliout  carrying 
the  doctrine  found  in  Ex  /xtrtt  hirezr  to  its  fidlest  extent,  s{>eak- 
\\v^  for  myself,  I  should  U*  ready  to  follow  it,  rather  tiian  over- 
turn all  that  lias  Ix^-eu  .settled  Upon  this  subject  for  such  a 
leni,fth  of  time. 

I5ut  it  is  tirst  to  be  considered  whether  these  ciises  nuiy  not 
be  supported  by  a  construction  of  tlie  statute  wliieh  will  not  go 
to  that  extent,  and  will  leave  the  opinion  of  Lord  Hardwicke  in 
the  case  of  Kx  part*'  Uikfrnhn  untouched. 

liy  the  iSth  .section  of  ;'>  (J.  '1,  e.  'M),  it  is  enacte<l,  "that 
where  it  shall  ajipear  to  tin-  saitl  (M)mmi.ssioners,  or  the  major 
part  of  them,  that  there  hath  Ix'en  mufmil  rrt<ilt,  given  by  the 
bankrupt  and  any  other  person,  or  mutual  dfht»  U-tween  the 
bankrupt  and  any  other  pt'i-si>n,  at  any  tinu'  liefore  such  |>ei*son 
Ijecanie  bankrupt,  the  .said  commissioners,  or  the  maj«>r  |»art  <»f 
them,  or  the  assignees  of  such  bankrupt's  estiite,  shall  state  tlu' 
account  l>etween  them,  and  one  debt  may  Ih)  .set  against  another; 
and  what  shall  ai)[)ear  to  be  due  on  either  side,  on  the  iKilanee 
of  such  account,  and  on  setting  such  dehtx  against  one  another, 
and  no  more,  shall  be  claimed  on  either  side  respectively. " 

Something  more  is  certainly  meant  here  by  mutual  rn-ihtK 
than  the  words  mutual  (h-bfn  import;  and  yet,  up(»n  the  linal 
settlement,  it  is  enacted  merely  that  one  tlcht  shall  Ix?  set 
against  another.  We  think  this  shows  that  the  legislature 
meant  such  rnilifs  onlv  as  must  in  their  nature  terminate  in 


ROSE  V.   HART.  1571 

debts  ;  as  where  a  debt  is  due  from  one  party,  and  credit  given 
by  him  on  tlie  other  hand  for  a  sum  of  money  payable  at  a 
future  day,  and  which  will  then  become  a  debt ;  or  where  there 
is  a  debt  on  one  side,  and  a  delivery  of  property  with  directions 
to  turn  it  into  money  on  the  other :  in  such  case  the  credit  given 
by  the  delivery  of  the  property  must  in  its  nature  terminate  in  a 
debt  the  balance  will  be  taken  on  the  two  debts,  and  the  words 
of  the  statute  will  in  all  respects  be  complied  with;  but  where 
there  is  a  mere  deposit  of  property,  without  any  authority  to 
turn  it  into  money,  no  debt  can  ever  arise  out  of  it,  and  there- 
fore it  is  not  a  credit  within  the  meaning  of  the  statute. 

This  principle  will  support  all  the  cases  from  French  v.  Fenn 
to  Olive.  V.  Smithy  which  is  the  last  that  has  occurred. 

In  French  v.  Fenn  there  was  a  debt  due  from  Cox  to  Fenn, 
and  Cox  entrusted  Fenn  with  his  share  in  the  pearls  for  sale^ 
which  when  sold  would  constitute  a  cross  debt  for  the  produce 
from  Fenn  to  Cox. 

In  Smith  V.  Hodson  (a),  the  defendant  had  entrusted  the 
bankrupts  with  his  acceptance,  which  he  was  liable  to  pay,  and 
which  when  paid  would  create  a  debt  from  the  bankrupts  to 
him  for  the  amount. 

In  Parker  v.  Carter^  Co.  Bankrupt  Laws,  548,  and  Olive  v. 
Smith,  the  bankrupts  were  indebted  to  the  defendants,  and  the 
bankrupts  delivered  policies  of  insurance  to  the  defendants  to 
collect  losses  under  them,  which,  when  collected,  would  make 
the  defendants  their  debtors  for  the  amount. 

So,  in  all  the  other  cases  which  have  occurred  upon  this 
subject,  it  will  be  found,  that  that  which  has  been  allowed  as 
a  mutual  credit  has  always  been  of  such  a  nature  as  must 
terminate  in  a  cross  debt. 

To  this  extent  we  think  the  statute  may  be  carried,  but  no 
further;  and  we  follow  the  final  opinion  of  Lord  Hardivicke,  in 
determining  that  the  delivery  of  these  cloths  to  the  defendant, 
for  the  purpose  of  being  dressed,  does  not  form  an  article  of 
mutual  credit  in  his  favour  within  the  fair  construction  of  the 
clause  relied  on. 

The  fostea  must  therefore  be  delivered  to  the  plaintiffs  (5). 

(a)  4  T.  R.  211.  son  v.  Burton,  2  B.  &  B.  89,  particu- 

(6)  Dallas,  J.,  was  absent  from  ill-  larly  the  judgment  of  Burroughs  J. ; 

ness,  but  concurred  in  this  judgment,  and,   in  p.   96   of    that    report,    for 

ex  relatione  Gibbs,  C.  J.     See  Samp-  "  1818"  read  "  1817." 


l'>72  llOSK    V.    llAltT. 


This  Is  the  Ifading  casi-  on  tin*  suf»J«'<'t  "f  f»m/m/i/  rroiUt.  Thr  prior  drcl«- 
ItiiiH  \vi'r«-,  as  will  Imvf  tn-i-ti  seen  In  tin-  t«>xt,  at  varlam-)*  with  oiir  anothrr; 

mill  ihi-  ruh'  e^Hluhllshi-tl  In  /»'«»*»•   v.  litrt  liaM  fver  »lin'«"  U-rii   r ikiiImiI  and 

actcil  upon.  It  wa.s  ilftt-nnlnod  after  niiieh  conHtderatlon,  for  Hiirroiiich,  J.. 
states  in  Sainpnon  v.  HurtoH,  'i  It.  &.  B.  Ml),  that  the  judi;(>M  luul  iirveral  incei- 
in:;s  upon  it. 

Till- ilnrtrlne  of  s«-t-<iir  In  Itankniptey  Is  shown  by  .Mr.  ('hrUtian  t4)  have 
e.\Ute«l  from  a  very  early  iM'rlml,  eertalnly  Ix-fort*  ^t.  4  i  .*»  Anne,  c.  17,  In 
which  it  llrnt  n-eeived  the  expresj*  sani-tlon  of  tlir  Irtfl-.laturr.  See  I  (h.  4y9; 
.l/i<i»i.  1  Mo<l.  '*\Tt\  i'hnpmnn  v.  l)<rrt<>j,  'i  Veni.  117;  [and  the  note  to  the 
(iitruftt  linlil  Mininij,  dr.,  Co.  v.  Sutton.  Wi  \..  J.  y  H.  4'.>  )  The  piillry  of 
allowint;  n  Hrt-olT  hetwern  moneys  diif  to  and  from  tin*  Itanknipt's  rMtate,  U 
prrelsely  tiie  same  as  that  In  which  the  law  relative  to  »l>>i'iuigf  in  tniHsitu 
originated.  It  Is  to  prevent  one  man's  debts  from  iMdntc  l**hl  with  another 
man's  money,  which  would  take  plaee  If  a  man,  lM>lnK  at  once  the  debtor  and 
creditor  of  tlif  linnkrupt.  wm-  foree«l  to  /xiy  the  whole  of  hiM  drbl  t«>  the 
estate,  and  to  rt-rriir  only  a  dl\idcnd. 

The  enactment  In  the  statutt'  of  .\nne  wa^  fo||owe«l  by  a  similar  one  In  tin- 
temporary  act  of  5  (i.  1,  c.  II  :  then  with  improvements  by  .">  (i  'i,  e.  :io,  h.  2m 
N'oiit*  of  these  acts,  however,  went  further  than  to  allow  a  set-ofT  u|>on  the 
a<'«"ounts  existinj;  itt  ihf  limr  of  thr  tu^nkrui^rif.  The  4«»  (i  ;i.  e.  l."l»».  it  3,  went 
further,  and  exteiuh-tl  the  rlirht  of  lU't-oir  to  cases  where  the  erwllt  was  jflven 
within  two  months  of  the  date  of  the  ritnimlsnUtn,  pnivldetl  the  (MrriMMi  icIvInK 
It  had  not  notice  of  a  prior  act  of  Imnkniptey,  or  tliat  the  lianknipt  wa*  In- 
solvent, or  had  stoppeil  payment.  It  was  fouml.  however,  that,  even  with 
this  extension,  cases  of  ureal  linrdshlp  o«'curretl.  S«*c  KintUr  v.  Iiutt'rtr<>rlh, 
r>  M.  vt  ('.  42.  [.Vfterwurd-*  came  the  •'.  (Jeo.  4,  i-.  l«,  s.  M,  but  the  enactment 
wliirli  continued  to  tfovern  this  Itranch  of  the  law  until  the  paMsIni;  of  the 
Hiuikruptcy  .Vet,  lst;'.»,  wa.s  contained  in  I*.'  A.  i:»  Vict.  c.  KX;,  s  171,  which 
provlih'd  ]  — 

"  That  where  there  has  bfrn  mutual  rrrdit  given  by  the  luinkrupt  and  any 
other  person,  or  where  there  are  mutual  debts  l)ctweon  the  banknipt  and  any 
other  persons,  the  court  shall  state  the  account  iK-twcen  them,  anti  «me  debt 
or  demand  n>ay  Ik*  set  a:;ninst  another,  nntirithjit'ttnlinij  <tny  prior  art  of  hank' 
rnptrij  mmtnittfil  />;/  mnh  Imnkruftt  b«'fore  the  cre«llt  ;;iven  to,  or  the  <hd)t  con- 
tracted l)y  him;  and  what  shall  a|>pear  <lue  on  either  side  on  the  balance  of 
sucli  account,  and  no  more,  shall  Im-  claime«l  or  paid  on  either  shie  res|MT- 
tively;  and  every  debt  or  deujand  hereby  niade  proveable  against  the  estate 
of  the  bankrupt,  may  also  Ik*  set  off  In  manner  aforesaid  against  such  estate, 
provkU'd  that  the  person  clalmlnjo;  the  iH-nefU  of  such  set-off  had  not.  xehen 
cieilit  icits  ijivfu,  notice  of  an  art  of  hnnkruptctj,  by  such  banknipt  committed." 
This  section  [was]  a  re-enactment  of  s.  .50  of  the  r,  (}.  4.  c.  16  (the  wi»rd 
"  court "  beln;ir  siibstituteil  for  the  word  "commissioners"),  and  the  caitea 
therefore  upon  the  earlier  act  still  continued  to  be  authorities  as  to  the  con- 
struction of  the  [later. 

This  section  was  in  its  turn  repealed,  and  s.  ,^0  of  the  Bankniptcy  Act.  is«;9, 
sul)stituted  for  it.  which  latter  section  is  now  replaced  by  s.  3.S  of  the  Bank- 
ruptcy Act.  1883.  46  &  47  Vict.  c.  52.  the  enactment  now  in  force.  The 
words,  however,  are  practically  identical  with  those  of  the  late  Act.  They 
are  as  follows  :  — 

*•  Whore  there  have  been  mutual  credits,  mutual  debts,  or  other  mutual 


ROSE   V.    HAIIT.  1573 

dealings  between  a  debtor  against  whom  a  receiving  order  sliall  be  made  under 
this  Act  and  any  other  person  proving  or  claiming  to  prove  a  debt  under  such 
receiving  order,  an  account  sliall  be  taken  of  wliat  is  due  from  tlie  one  party  . 
to  tlie  other  in  respect  of  sucli  mutual  dealings,  and  the  sum  due  from  the 
one  party  shall  be  set  ofl' against  any  sum  due  from  the  other  party,  and  the 
balance  of  the  account,  and  no  more,  shall  be  claimed  or  paid  on  either  side 
respectively ;  but  a  person  shall  not  be  entitled  under  this  section  to  claim 
the  benefit  of  any  set-ofl:' against  the  property  of  a  debtor  in  any  case  where  he 
had  at  the  time  of  giving  credit  to  the  debtor,  notice  of  an  act  of  bankruptcy  com- 
mitted by  the  debtor,  and  available  against  him."  With  the  addition  of  the 
words  "  mutual  dealings,"  which  were  first  introduced  in  the  Act  of  1869,  and 
the  eflTect  of  which  will  be  considered  hereafter,  this  section,  like  its  prede- 
cessor, is  substantially  a  re-enactment  of  the  previous  acts,  as  interpreted  by 
judicial  decisions,  and  the  cases,  therefore,  upon  questions  of  mutual  credit 
under  the  earlier  acts  continue  for  the  most  part  to  be  authorities  upon  the 
present  law.  Though  the  words  of  the  earlier  Acts,  "notwithstanding  any 
prior  act  of  bankruptcy,"  are  now  omitted,  an  implication  equivalent  to 
them  arises  from  the  rest  of  the  section;  see  Elliott  v.  Turquund,  7  App.  Ca. 
at  p.  86.] 

Notice  of  the  act  of  bankruptcy  is  now  therefore,  [as  formerly,]  the  dividing 
point  at  which  the  right  of  set-off  terminates ;  and  consequently  it  has  been 
held,  that  a  person  who  after  bankers  had  actually  stopped  payment,  indus- 
triously collected  their  notes  for  the  express  purpose  of  setting  them  ott" 
against  a  debt  due  from  himself  to  the  firm,  should  be  allowed  to  do  so,  as  he 
had  no  notice  of  any  act  of  bankruptcy  actually  committed  by  either  of  the 
partners,  Dickson  v.  Cass,  1  B.  &  Ad.  343,  accord.  Hatckinsv.  Whitten,  10  B.  & 
C.  217.  But  it  was  held  in  the  same  case  that  he  could  not  set  off  notes  which 
he  had  taken  after  he  knew  that  some  of  the  partners  had  committed  acts  of 
bankruptcy;  and  see  Ex  parte  Snnioball,  L.  R.  7  Ch.  534,  41  L.  J.  Bkcy.  49,  as 
to  what  circumstances  will  be  taken  to  amount  to  notice. 

It  will  be  observed  that  the  language  of  the  present  section  is  "  notice  of 
an  act  of  bankruptcy,  available  against  him."  Having  regard  to  the  provis- 
ions of  s.  6,  these  words  would  appear  to  limit  the  necessity  for  notice  to 
acts  of  bankruptcy  occurring  within  three  months  of  the  presentation  of  the 
petition.  Such  was  the  construction  piit  on  the  similar  expression  in  ss.  94 
and  95  of  the  late  act,  Ex  parte  Gilbey,  8  Ch.  D.  248.] 

Under  the  12  &  13  Vict.  c.  106,  s.  171,  there  [were,]  it  will  be  observed,  two 
classes  of  cases  in  which  the  right  of  set-off  [was]  expressly  given.  1.  Where 
there  were  mutual  debts.  2.  Where  there  had  been  mutual  ci'edits.  It  is 
upon  the  second  of  the  above  two  classes  that  Rose  v.  Hart,  [has  been]  a 
leading  authority.  It  [has  been]  cited  when  the  question  [has]  occurred,  — 
does  a  particular  state  of  dealings  amount  to  a  mutual  credit  between  the 
bankrupt,  and  some  person  claiming  to  set  ofl"  a  cross  demand  against  his 
estate? 

The  first  case  bearing  upon  this  question  was  Ex  parte  Prescott,  1  Atk.  230, 
where  the  claimant  owed  the  bankrupt  a  debt,  payable  in  futuro,  and  the 
bankrupt  owed  him  one  payable  in  prcesenti.  Lord  Hardwicke  said,  that  this 
constituted,  not  indeed  a  mutual  debt,  but  a  mutual  credit.  The  cases  soon 
multiplied;  and  it  was  settled,  that,  in  order  to  render  credits  mutual,  within 
the  meaning  of  the  bankrupt  laws,  it  was  not  necessary  that  the  bankrupt 
and  the  creditor  should  particularly  intend  to  trust  each  other,  or  to  raise 
cross  demands.     This  was  settled  in  Hankey  v.  Smith,  3  T.  R.  507,  n.,  where 


ir)7t  Kosic  V.  HAirr. 

A.'s  ai-ci'ptnncp  got  into  B.'s  Imiids,  niul  H.  Ixmulit  ^oods  of  A.,  \\\u>  illil  imt 
know  timt  the  bill  wuh  in  H.'s  iiaiuls. 

After  Lord  lIurilwickL'  hud,  in  AV  pnrtf  Frfurott,  pointed  out  tlie  dlntinclloii 
between  mutual  debts  anil  mutual  crfdits,  the  latter  tenn  wan  fre<|uently  relied 
on,  and  there  wax  a  struf^fjle  to  bring  within  its  nieanint;  many  deniandn 
which  could  not  possibly  have  raiiffed  within  the  former  term  it  has  In-en 
seen  from  the  discussion  In  the  text,  that  in  AV  y»/r^•  l>>'fZf.  1  Alk.  2?m,  these 
words  received  a  very  large  construction;  which  was  narrowed  by  l-.x  jmrtf 
Ockftidfu,  1  Atk.  2:U  ;  and  that  these  cases  were  followed  by  a  string  of  de- 
cisions, beginning  with  Friiuh  v.  Ffun,  Co.  IJ.  L.,  7th  ed.  .VU".,  a.i».  17>:i,  and 
extending  over  a  period  of  more  than  thirty  years,  during  whhh  Fr'-mh  v. 
Fenn  was  the  leading  case  upon  this  subject. 

At  last,  In  1818,  Jionf  V.  Hart  was  decided,  and  the  rule  established  which 
[has  ever  since  prevailed],  namely,  "  that  mittiial  creditx,  within  the  meaning; 
of  the  bankrupt  laws,  are  rreditu  irhirh  must  in  thfir  nature  tmninnt'-  in  di'fds." 
And  this  it  is  subndtted  means,  not,  as  has  been  contended  in  some  cases, 
credits  which  must,  t-r  necfssitatf  rei,  terminate  in  «lebts,  l)ut  credits  which 
have  a  natural  tendency  to  terminate  In  «lebts,  not  in  claims  ditTering  in  nature 
from  a  ilcbt.  'I'luis  it  was  settletl  in  Smith  v.  Ilodsnn,  \  Y .  U.  211,  that  an 
accommodation  acc»'ptance  is  a  rrt-dit.  given  by  the  acceptor  to  the  party  ac- 
commodated ;  and  yet  It  Is  not  ri-rtnin  to  end  in  a  ilebt.  for  the  party  accom- 
modated ought  to  provide  for  the  bill  at  maturity,  and.  if  he  do,  tliere  will  l>c 
no  tlebt;   [  Yalrs  v.  Ilopjte.  t>  ('.  B.  .-)4l  ]. 

The  cases  between  Fr>nrh  v.  Frnn  and  Itusf  v.  Ilnrt  were  all  recognlMiHl  by 
the  latter  ca.se.  and  stated  by  the  Lord  Chief  Justice  to  Im*  reconclleable  with, 
and  suj)ported  by,  his  «leclslon.  It  will  [therefore)  be  necessary  to  review 
them  bi'fore  proceetling  U^  the  cases  subseipient  to  llnsr  v.  Hart.  The  case 
of  French  v.  Finn  itself  is  well  abridged  by  the  LonI  Chief  .lusth-e  In  the 
text,  and  is  well  epitomised  by  the  same  learned  judge,  while  at  the  l»ar.  In 
Ills  argument  in  Smith  v.  Uodaon,  ante,  p.  l;W,  so  that  It  Is  unnecessary  to 
repeat  the  facts  here  at  full  length.  It  Is  a  very  remarkable  case,  and  was 
long  the  leading  decision  on  this  subject;  and,  excepting  the  overrule«l  cn.se 
of  Fx  parte  Deeze,  anti  the  later  «leclslon  of  Kasum  v.  f'atn,  post,  goes  |>er- 
haps  further  than  any  case  upon  this  branch  of  the  bankrupt  laws.  Smith  v. 
Hodson,  4  T.  K  211,  is  reported  at  length  In  this  volume.  Ix-ing  the  loadiuf^ 
ca.se  upon  another  e(|ually  important  jjolut.  .\s  far  as  It  bears  on  the  present 
subject,  it  was  expressly  ap|)roved  of  l)y  the  court  in  Ilulinf  v.  Mut/ijhstnn,  'S 
M.  &  \V.  ;;(». 

In  Atkinson  v.  Flliott,  I  T.  It.  ;57H,  the  defenilant  sold  the  bankrupt  a  parcel 
of  tars  for  430/.  at  six  months'  credit,  for  which  the  banknipt  accepted  a  bill, 
and  afterwards  bought  another  parcel  for  230/.  on  the  same  tenns.  On  the 
first  bill  becoming  due,  he  gave  the  defendant  two  bills  on  third  parties, 
making  together  (iOO/.,  and  the  defendant  undertook  on  their  l)elng  paid,  to 
return  170/.,  it  not  being  Intended  to  ilo  more  than  take  up  the  bill  ac<-epted 
for  tlio  price  of  the  first  jiarcel.  In  an  action  for  the  170/..  the  defendant 
was  allowed  to  set  ofThis  demand  for  the  second  parcel  of  gootls. 

In  Fx  parte  Boyle,  re  Shepherd,  l.i  Aug.,  1803,  Co.  Bank.  L..  8th  ed..  .'>71, 
Lord  Cork,  to  accommodate  Shepherd,  who  was  his  solicitor,  drew  four 
notes,  two  payable  to  Nlbbs  or  order,  and  two  to  Shepherd  or  order,  making, 
in  the  whole,  981/.  Os.  Sd.  Lord  Cork,  having  been  forced  to  take  up  one  of 
them  before  the  bankruptcy,  and  two  afterwards,  the  (piestlon  was.  whether 
these  payments  could  be  set  off  against  a  debt  ilue  from  his  lordship  to  Shep- 


ROSE   Y.    HART.  1575 

herd's  estate.  The  Lord  Chancellor  at  first  thought  that  the  account  must 
be  taken  as  it  stood  at  the  time  of  the  bankruptcy,  and  that  the  debt  could 
not  be  set  ofl"  against  the  mere  liability  on  which  no  payment  was  made  till 
after  the  bankruptcy  :  but  afterwards  his  lordship  said  he  had  considered  the 
case,  and  was  of  opinion,  that  the  petitioner  was  entitled  to  set  off  the  debt 
against  the  payments  after  the  bankruptcy- 

That  an  accommodation  acceptance,  not  paid  till  after  the  bankruptcy  by 
the  acceptor,  could  be  set  off  against  the  estate  of  the  party  accommodated, 
was  also  decided  in  Ex  parte  Wagstaff,  13  Ves.  Qb ;  and  these  cases  were 
cited  with  approbation  by  Parke,  B.,  in  Hulme  v.  Muygleston,  3  M.  &  W.  30. 

In  Sheldon  v.  nothschild,  8  Taunt.  156 ;  2  Moore,  43 ;  Otte  drew  a  bill  on 
B.  &  Co.,  for  iOOl.,  which  they  accepted  without  value.  They  afterwards 
owed  Otte  236Z.  lis.  3d.,  and  drew  on  him  for  163Z.  8s.  dd.,  the  balance.  This 
bill  they  sold  to  the  defendant,  and  afterwards  became  bankrupts,  the  400?. 
bill  remaining  in  Otte's  hands  unpaid.  Otte  accepted  without  notice  of  the 
bankruptcy,  and  paid  the  UV31.  8s.  9d.  to  the  defendant,  on  which,  the  assign- 
ees of  B.  &  Co.  brought  an  action  as  for  money  had  and  received ;  but  the 
court  held  that  there  was  a  mutual  credit  i)etween  the  bankrupt  and  Otte, 
and  that,  inasmuch  as  he  could  have  set  off  his  demand  on  the  estate  in  any 
action  brought  against  him,  the  defendant,  whom  he  had  iudemnifled,  and 
who  stood  in  his  place,  might  do  so  also. 

The  next  decision  is  the  principal  one  of  Rose  v.  Hart,  which  is  reported 
in  the  same  volume  with  Sheldon  v.  Rothschild,  the  Lord  C.  J.  Gibbs,  Avho 
had  argued,  when  at  the  bar,  in  Smith  v.  Hodson,  delivering  the  judgment, 
which  was  one  of  the  last  pronounced  l)y  that  distinguished  judge.  This 
case  settled  the  law  upon  the  subject ;  the  subsequent  decisions  turning  all  of 
them  on  the  applicability  of  the  rule,  promulgated  in  Rose  v.  Hart,  to  partic- 
ular states  of  fact. 

A  very  remarkable  case  on  this  part  of  the  bankrupt  law  in  Easum  v.  Cato, 
5  B.  &  A.  861,  in  which  the  doctrine  of  mutual  credit  was  perhaps  carried 
further  than  in  anj''  case  subsequent  to  Rose  v.  Hart.  In  Easum  v.  Cato,  J.  S., 
being  desirous  of  making  a  sliipment  at  his  own  risk,  but  not  in  his  own 
name,  represented  to  the  merchants  through  whom  the  shipment  was  to  be 
made,  that  the  goods  were  A.'s;  and  procured  A.  to  write  to  them  to  insure, 
and  make  advances  on  the  goods,  which  was  done.  J.  S.  having  become  a 
bankrupt,  it  was  held,  that  A.  might  recover  the  proceeds  of  the  goods,  and 
set  off  a  debt  due  to  himself  from  J.  S.  in  an  action  for  them  by  the  assign- 
ees ;  vide  tamen  Young  v.  Bank  of  Bengal,  1  Deacon,  622 ;  Moore's  Priv.  C. 
Ca.  150,  a  case  the  decision  of  which  it  is  perhaps  not  easy  to  reconcile  with 
Easum  v.  Cato. 

In  that  case  P.  &  Co.  obtained  advances  from  the  Bank  of  Bengal,  deposit- 
ing negotiable  securities  and  giving  promissory  notes,  with  an  authority  to 
the  Bank  to  sell  the  securities  at  the  end  of  three  months  for  their  reiml)urse- 
ment  rendering  back  any  surplus  to  P.  &  Co.,  who  undertook  to  make  up  the 
deficiency,  if  an}\  P.  &  Co.  became  bankrupts,  and  the  Bank  having  sold 
the  securities  and  realised  a  surplus,  the  question  arose  whether  under  clauses 
precisely  similar  to  those  of  the  English  Bankrupt  Act  there  could  be  a  set- 
ofi'  between  it  and  another  independent  debt  due  from  P.  &  Co.  to  the  Bank. 
The  Supreme  Court  of  Bengal  (dissentiente  the  Chief  Justice)  held  that  there 
might;  but  the  decision  was  reversed  in  the  Privy  Council,  and  the  judgment 
does  not  purport  to  be  founded  on  the  special  promise  to  repay  the  surplus, 
but  on  the  uncertainty  at  the  time  of  the  bankruptcy  whether  there  would 


IhH)  KOSK    V.    IIAUT. 

ever  be  u  (Ifl)t  capubli-  of   b»'iiiji  si-t  olf  urisiuj;   from   the  lude  uf   ''•■•  '•- 
curitlfH. 

Youufj  V.  Jidtt/c  of  Hfnijdl  wiis  inucli  comiiu'iitcU  on  In  Alaager  v.  l  urri> .  i_' 
M.  &  W.  ".">1.  In  that  c-ust;  liaron  I'arki-  plai-os  tin*  tU-cUion  on  two  f^ruundtt : 
1st,  tliat  thcrt-  was  no  mutual  crinlit,  as  the  M'rurlti«-<  Iwul  l>«<«>n  «li*|Hiiilt<*(l 
with  till'  bank  f'nr  a  ixirtinihtr  /iKrpnue.  2nd,  that  It  was  tin-  duty  of  the 
ussi<;ni't's  to  rtMlfi-m  the  paper  Immoliatcly,  ami  if  tlu-y  IkkI  dom'  so,  no  di-bt 
would  liavf  iK'cn  dm-  in  rispt-ct  of  tin*  loan. 

[In  Xiiomji  V.  Chitrtfrfil  Hank  of  India,  L.  H.  ;i  ('.  1".  444.  tin-  ptaintilTs  who 
wt-rr  in  tin*  habit  of  ilrnw-in<;  bills  on  partit-s  in  Imiin,  and  whose  pntrticc 
it  was  to  t'ntrust  thi's»'  bills  to  the  defendants  for  the  purpose  of  eolleetion, 
had  executed  a  doetl  of  inspe«-torship  uniU-r  the  Hankruptey  Art.  ]xC,\.  At 
the  date  of  the  deed,  the  plaintitl's  were  indet)ted  to  the  defendant.s  in  a  Huin 
of  H:(:t.'>/.  In  an  action  bmu^iit  >iy  tiie  plidntltts  to  recover  a  sum  of  money, 
th«'  proceeds  of  l)llls  entrusted  to  tlie  defemiants  for  collecticm,  of  which  a 
small  portion  only  liad  l)cen  received  by  them  itefore  the  <lat<'  of  tlie  dee<l, 
it  was  held,  distini;»dshinir  Viniufj  v.  Hank  of  lit-nijiil,  tliat  ina.smuch  as  the 
autiiority  to  collect  tlie  Idiis  hail  not  been  revoked  at  the  time  of  the  execu- 
tion «)f  the  dee<l,  there  was  a  mutual  credit  under  section  171  of  the  late  Act, 
.so  as  to  entitle  the  defendant.s  to  het  off  the  «uni  tlue  to  them  against  the 
plaintitl's'  claim  for  the  proceeds  n-celved  after,  as  well  as  for  those  received 
before  tlie  ilate  of  the  deed.  There  Is  an  error  In  the  liea«l  note  of  this  «-a.se 
in  tile  \..  K.,  as  it  is  there  stated  tliat,  at  the  date  of  the  dee«l.  the  sum  sued 
for  was  a<'tually  collected  and  in  tlie  liainls  of  the  defendants,  in  which  ca.se 
no  i|Ueslion  of  mutual  rrnU(  coiiUl  have  arisen ;  see  the  report  in  IM  L.  T.  N. 
S.  li-'iH,  where  tlie  case  is  fully  set  out.  See  also  Astlfij  v.  (iurnry,  I,.  \i.  4  ('. 
I'.  714,  where  a  similar  (juestion  was  discussed  in  the  Exclie<juer  Chamber, 
and  Elliott  v.  Turnuaml,  7  App.  C'a.s.  7'J,  51  L.  J.  V.  C.  1,  in  the  Privy  Council. J 

In  Oroom  v.  WeM,  8  A.  &  E.  7'>K,  an  ajfreement  to  pay  the  banknipt  for 
goods  sold  prompt  two  months,  or  by  acceptance,  was  held  a  claim  against 
which  a  debt  due  j'rotn  the  bankrupt  niiiflit  be  set  otV. 

The  nature  and  extent  of  the  ndc  laid  down  in  Hosf  v.  Hart  are  well  illus- 
trated by  the  two  cases  of  Hose  v.  Sim.i,  1  H.  &  .\d.  .I'il,  and  (iihson  v.  Hell, 
1  Biiii;.  N.  C.  74.S ;  in  tlie  fonner  of  whi«'h  it  was  held,  that  an  a;;reement 
to  indorse  a  liill  of  exchantre  did  not  create  such  a  cre<lit  as  tlie  statute 
intends;  in  the  latter,  that  an  agreement  to  accept  a  bill  did  create  such  a 
<'ivdit.  These  cases  turned  on  the  distinction  Ix'tween  an  acceptancf,  wlilch 
creates  a  debt,  and  an  imhirsement,  which  creates  only  a  suretyship.  See 
Walliti  V.  Swinburne,  1  Exch.  2i»:'.. 

In  Ilnlme  v.  Muijijleston,  .{  .M.  i<:  W.  :!ii,  to  an  action  for  money  had  and 
received  to  the  use  of  the  assijrnees  of  John  Smitli,  the  dt-femlant  pleaded 
that  before  notice  of  the  bnnkrnptrij,  he  indorsed  a  bill  for  Smitli's  accommo- 
dation, and  tliscounted  another  for  him,  both  of  wliidi  he  was  obliijed  to  take 
up  lifter  tlie  bankruptcy ;  that  brfnre  tlie  bankniptcy,  Smith  lent  him  a  cheque, 
the  proceeds  of  which  he  received  after  the  bankruptcy,  whidi  was  the  same 
money  now  sued  for,  and  against  which  he  claimed  to  .set  off  the  amount 
of  the  dishonoured  bills.  The  court  held  the  plea  goo<l.  To  the  same  effect  is 
Rtissell  V.  Bell,  8  M.  &  W.  277,  whidi  is  not  quite  so  strong  a  case  a.'^  Ilulme  v. 
Mufjfjlettton,  the  credits  being  accommodation  acceptances,  as  in  Smith  v.  Hod- 
son,  instead  of  indorsements,  as  in  Hnhne  v.  Mnfjglestnn. 

In  Biri(ilestone  v.  Timmis,  1  C.  B.  389.  the  Court  of  C.  P.  held  that  a  demand 
^vhich  originated  before  tlat,  and  before  notice  of  any  act  of  bankruptcy, 


ROSE    V.    HART.  1577 

could  be  set  off  against  a  claim  for  monej'  had  and  received  to  the  use  of 
the  assignees,  arising  out  of  a  credit  given  by  the  banlvrupt  before  fiat, 
and  before  notice  of  any  act  of  bankruptcy. 

In  Collins  V.  Jones,  10  B.  &  C.  777,  it  was  laid  down  by  Bayley,  J.,  that 
'•whoever  takes  a  bill  must  be  considered  as  giving  credit  to  the  acceptor;  and 
v'hoecer  takes  a  note,  credit  to  the  drawer."  See  Arbouin  v.  Tritton,  Holt,  608; 
Edmeads  v.  Newman,  1  B.  «&  C.  418.  In  Belcher  v.  Lloyd,  10  Bing.  316,  a 
distinction  was  engrafted  on  the  above  rule ;  namely,  that  the  holder  of  the 
bill  or  note,  to  be  within  the  statute,  must  not  be  a  mere  agent  holding  it  for 
the  benefit  of  a  third  person.  In  that  case,  Maberly's  assiguees  sued  Lloyd  & 
Co.,  acceptors  of  a  bill  for  1000/.  drawn  by  the  Commercial  Banking  Co.,  and 
indorsed  to  Maberly.  Wlien  Maberly  became  bankrupt,  Lloyd  &  Co.  had  in 
their  hands  a  bill  for  760/.,  drawn  by  a  firm  in  which  Maberly  was  a  partner, 
accepted  by  a  firm  in  which  lie  also  was  a  partner,  and  indorsed  bj'  the  Com- 
mercial Banking  Co.  This  bill  became  due  on  the  6th  of  January,  the  day  on 
which  Maberly  stopped  payment,  whereupon  Lloyd  and  Co.  protested  it ;  and 
having  in  their  hands  sufficient  assets  of  the  Commercial  Banking  Co.  to 
discharge  it,  debited  the  company  with  the  amount,  and  sent  them  the 
protested  bill,  with  a  receipt  for  it.  The  Commercial  Banking  Co.  sent  back 
the  bill,  requesting  Lloyd  &  Co.  to  set  off  its  amount  against  their  own 
acceptance  for  1000/. ;  and  the  question  was,  whether  they  had  a  right  to  do 
so.  The  court  held  not.  "Can  it  be  said,"  asked  Mr.  J.  Bosanquet,  "that 
the  defendants  are  creditors  of  Maberly,  and  hold  the  bill  on  their  own 
account?  If  not,  and  if  thej^  hold  the  bill  as  mere  trustees  for  the  Scotch 
house,  as  such  trustees  they  are  not  entitled  to  set  it  off  against  a  demand 
made  on  themselves  in  their  own  right." 

Similar  to  this  decision  was  Lackington  v.  Combes,  6  Bing.  N.  C.  71,  Avhere 
to  an  action  by  the  assignees  for  the  price  of  a  phaeton,  which  had  been  sold 
by  the  bankrupt  to  the  defendant,  on  ready-monej^  terms,  the  latter  endeav- 
oured to  set  off  a  dishonoured  acceptance  of  the  bankrupt,  in  whicli  he  had  no 
real  interest,  but  which  he  had  obtained  from  the  holder  for  that  purpose. 
It  was  held  that  he  was  not  at  liberty  to  do  so.  See  Fair  v.  M'lver,  16  East 
130;  Foster  v.  Wilson,  12  M.  &  W.  191;  ^London,  Bombay,  &c.,  Bank  v.  Nar- 
ra/imy,  L.  R.  15  Eq.  93]. 

That  the  demands,  in  respect  of  Avhich  a  set-off  is  claimed,  must  be  in  the 
same  right,  is  established  by  several  cases.  See  West  v.  Pryce,  2  Bing.  455; 
Ex  parte  Whitehead,  1  G.  &  J.  39;  Wood  v.  Smith,  4  M.  &  W.  525;  Stainforth 
V.  Fellows,  1  Marsh  184;  [New  Qiiebrada  Co.  v.  Carr,  L.  E.  4  C.  P.  651]. 
Thus  in  Groom  v.  Mealey,  2  Bing.  N.  C.  138,  where  to  an  action  for  money 
had  and  received  to  the  use  of  the  assignees,  the  defendant  pleaded  a  set-off 
of  money  due  to  him  from  the  bankrupt,  it  was  held  ill  on  demurrer.  See 
also  Yates  v.  Sherrinyton,  11  M.  &  W.  42,  where  to  an  action  by  the  assignees 
on  a  note  not  payable  to  order  given  to  the  bankrupt's  wife  clum  sola  (sup- 
posing the  action  to  be  maintainable,  which  it  was  afterwards  holden  by  the 
Exchequer  Chamber  not  to  be),  it  was  held  that  a  debt  due  from  the  bank- 
rupt in  his  own  right  could  not  be  set  off.  S.  C.  in  error,  12  M.  &  W.  855 ; 
[and  see  Bailey  v.  Finch,  L.  R.  7  Q.  B.  34;  41  L.  J.  Q.  B.  83;  Sankey  Brook 
Coal  Co.  V.  Marsh,  L.  R.  6  Ex.  185 ;  40  L.  J.  Ex.  125 ;  Bailey  v.  Johnson,  L.  R. 
7  Ex.  263;  40  L.  J.  Ex.  189;  Ex  parte  Morier,  12  Ch.  D.  491. 

In  Alloway  v.  Steere,  10  Q.  B.  D.  22,  52  L.  J.  Q.  B.  38,  where  a  bankrupt's- 
trustee  had  not  disclaimed  a  tenancy,  and  so  became  liable  as  assignee  on  the 
covenants  in  the  lease,  and  at  its  expiration  had  claimed,  as  he  was  entitled. 


loTH  ROSE    V.    IIAKT. 

to  do,  the  value  of  tillages  from  tlic  limdlunl,  It  was  licld  under  the  late  act 
that  the  latter  could  not  set  oil'  the  lunount  of  rent  due  at  the  chite  of  the 
biiiikrupfcy  from  tlie  bankrupt] 

'I'lie  pi'(  idiiir  ri};lit  of  sft-otf  fouiKlrd  on  tlif  mutual  criMlli  clause  of  the 
l)!iiikru|)t  acts,  exists  in  case  of  a  l>!iMkruptcy  oidy  as  lu'twciu  the  [truHtec] 
of  the  baukiiipt  and  the  th-htor  to  tin-  cstjitc  It  cannot  l>c  made  avatlahle  in 
an  action  broniriit  l)y  tiic  i)ankrnpt  as  tnistrc  for  a  person  to  wliom  lie  Iuih 
assigned  Ids  (Mjintat)ic  intcn-st  Itcfurc  tlic  t>ankru|itcy,  lioijil  v.  .Miimjlrn,  n;  M. 
&  W.  337. 

[The  provisions,  however,  of  tiie  Judicature  Act,  187:1  (.'{«;  &  '-17  Vict.  c.  GG), 
and  Judicature  Act,  lrt75  (38  &  39  Vict.  c.  77),  <).  XIX.  r.  3.  ns  to  the  rljrht  of 
set-(jfl'havc  had  the  otl'ect  of  rendering  set-off  In  actUms  mmh  wider  than  It 
was  fonncrly  in  bankruptcy.     See  O.  XIX.  r.  3] 

It  Is  also  necessary  that  the  mutual  credit  should  exist  at  (hf  timr  of  thr 
hdnkruptrij,  [Dirk'nun  v.  KnntK,  (!  T.  U.  .'»7,  ]  /<«»'/'/  v.  .Munijli-it,  iihi  nnp.  [anil  see 
per  Martin,  H.,  linUnj  v.  Ji>hintf)n,  L.  K.  t".  Kx.  I'si;  siiltject  however  to  an 
exception  in  the  case  of  secret  acts  of  bankruptcy,  for  though  the  section  of 
the  present  act,  like  that  of  the  fonner,  does  not  dellne  the  time  for  taking 
the  account,  it  may  at  all  events  be  taki'U  up  to  the  time  when  the  party 
claiming  the  benefit  of  the  clause  ha.s  noth-e  of  an  act  of  lmnkrupt<-y,  EllioU 
V.  '/'nniiitind,  7  .\pp.  ('as.  7'.i,  'il  L.  J.  V.  C.  1.  On  the  other  hand,  except  in 
the  ca.se  of  a  secret  act  of  bankruptcy,  the  line  as  to  set-oil*  nnisl  be  drawn 
at  the  commencement  of  the  bankruptcy:  and,  therefore,  a  cn-illtor  of  the 
bankruiit  cannot  set  off  his  liability  on  a  bill  accepted  by  him  w  Ith  notice  of 
the  bankruptcy  against  his  own  claiuj  on  the  bankrupt's  estate  :  /«  re  (tilhupie. 
Ex  i>'irfr  liriil,  14  {I  \\.  I).  ;m;3,  '2\  \..  .1.  t^.  H.  'M2.  See  al.so  In  rf  .1/i7<im  Tram- 
icai/s,  2.">  Ch.  1).  .'),s7, '>3  L.  .1.  Ch.  liMts.  It  was  fonnerly  held  that)  no  set-off 
by  way  of  niutmil  credit  [c<udd]  be  pleaded  to  a  claim  by  the  a.sslgnee8  of  a 
bankrupt  resulting  from  the  ndsappllcatlon  by  tlie  (lefrndi'iit  of  numey  placed 
In  his  hands  by  the  bankrupt  for  the  purpose  of  meeting  his  acccptance.H, 
such  claim  having  been  held  to  be  for  unli<pddated  damages,  H^ll  v.  Carey,  8 
C.  B.  H,S7;  inn  V.  ■Smj7/i,  12  M.  .i^  W.  CIS.  [See  now,  however.  Unoth  v. 
HHtrhinsint,  L.  U.  1,")  E<|.  ."^O.  abstnicted  infra.  A  claim  In  respect  of  a  loss  on 
a  policy  of  insurance  ndglit  even  under  the  former  statutes,  lH'f«)re  adjust- 
ment, have  been  set  up  as  a  nmtual  credit,  although  It  Is  not  a  debt  within 
the  statutes  of  set-otl".  Ihrktrith  v.  Itiillrn,  K  K.  &  H.  •W3;  sec  also  Knsti-r  v. 
Kaxitn,  2  M.  &  S.  112;  Parkir  v.  liraslfij,  il>.  423;  and  Lff  v.  linllen,  8  E.  &  B. 
693,  note.] 

It  must  be  borne  In  mind,  that  any  demand  proveable  under  the  flat  might, 
by  the  express  words  of  the  [G  Geo.  4,  c.  IG.  s.  ,')i)],  be  set  off.  On  the  otlier 
hand,  a  dcmanil  could  not  be  set  off  that  would  not  have  been  proveable  un- 
der the  flat.  See  Ahh„n  v.  //»V)ls,  .-)  Hing.  N.  C.  .•.79.  A.  If.  &  C.  dissolved 
partnership,  the  tlrm  owing  II.  .".1.S91/.  I2.<.,  and  .V.  owing  the  Ann  G.S17/.  9.i. 
8(?..  it  was  agreed  that  \.  should  pay  B.  &  C.  the  G.817/.  9.«».  S</.,  and  that  B.  & 
C.  should  keep  the  stock  and  assets  of  the  Arm.  and  shotdd  p.ny  II.  :  B.  &  C. 
became  bankrupts  while  47,000?.  remained  still  due  to  II.  Held  that  A.  conld 
not  set-off  his  liability  to  pay  this  sum  in  an  action  against  him  by  the  assign- 
ees. "  If,"  said  Mr.  J.  Erskine,  "in  consequence  of  the  bankruptcy  he  hail 
paid  the  whole  to  II.  he  might  have  proved  under  the  commission,  and  any  debt 
or  demand  proveable  under  the  commission  m.iy  be  set  off  where  there  has  been 
mutual  credit.  But,  here,  as  there  has  been  no  payment,  there  is  no  debt  or 
demand,  and  the  defendant  has  given  no  credit  to  the  banknipts,  nor  is  this 


ROSE  V.   HART.  1579 

OIK'  of  the  contingent  debts  provided  for  by  sect.  56,  on  -which  the  commis- 
sioners are  to  put  a  value  in  order  to  proof.  It  is  no  debt  at  all,  and  as  the 
defendant  may  never  be  called  on  to  pay  it,  it  would  be  impossible  to  put  a 
value  on  it.  —  This  is  not  a  debt  payable  on  a  continyency,  but  a  mere  liability 
which  may  or  may  not  become  a  debt  hereafter." 

It  will  have  been  observed  that  the  conclusion  of  the  171st  section  [of  the 
act  of  1849]  which  section  correspond [ed]  as  we  have  seen,  with  sect.  50  of 
the  6  G.  4,  c.  16,  enacted  [in  similar  terms]  that  every  debt  or  demand  made 
proveable  against  the  bankrupt's  estate  might  be  set  oft'. 

[The  right  of  proof  against  the  bankrupt's  estate  was  successively  ex- 
tended so  as  to  embrace  various  kinds  of  contingent  liabilities  by  6  Geo.  4, 
c.  16,  ss.  51  and  56;  12  &  13  Vict.  c.  106,  ss.  172  and  173;  24  &  25  Vict. 
c.  134,  ss.  153  and  154,  and  32  &  33  Vict.  c.  71,  s.  31,  all  of  which  are  now 
repealed.  The  right  of  proof  is  now  governed  by  sect.  37  of  the  Bank- 
ruptcy Act,  1883.  which  is  so  wide  in  its  terms  as  to  include  every  possible 
liability  arising  out  of  a  contract.  See  Ex  parte  Llynvi  Coal  Co.,  L.  R.  7  Ch. 
28;  Ex  parte  Peacock,  L.  R.  8  Ch.  682;  Ex  parte  Waters,  L.  R.  8  Ch.  562;  Ex 
parte  Blakeraore,  5  Ch.  D.  372;  Ex  parte  BoUand,  re  Winter,  8  Ch.  D.  225,  47 
L.  J.  Bkcy.  52,  upon  the  scope  and  interpretation  of  the  similar  section  of  the 
act  of  1869. 

It  remains  to  consider  what  efl'ect,  if  any,  has  been  produced  by  the  intro- 
duction of  the  words  "  mutual  dealings  "  in  the  present  and  last  previous  en- 
actments. In  Booth  V.  Hutchinson,  L.  R.  15  Eq.  30,  which  was  the  case  of  a 
deed  incorporating  the  provisions  of  the  Bankruptcy  Act,  1869,  it  was  held 
that  a  claim  for  damages  for  breach  of  covenant  which  were  unascertained 
at  the  date  of  the  deed  might  be  set  oft"  against  the  claim  for  rent  due  and  ac- 
cruing due  to  the  insolvent  estate  up  to  the  time  of  the  distribution  of  tlie 
estate  under  the  deed. 

In  delivering  judgment,  Malins,  V.-C,  said,  "If  the  case  were  under  the 
old  law  I  should  probably  have  concluded  that  there  was  no  right  of  set-off, 
but  the  old  decisions  rested  on  the  construction  which  the  courts  had  put 
upon  the  words  '  mutual '  and  '  mutual  credits.'  ....  The  language  of  the 
act  of  1869  is  altered  from  that  of  previous  acts  and  made  more  compre- 
hensive ;  and  I  must  therefore  conclude  that  the  right  of  set-off  given  by  the 
previous  acts  was  considered  to  be  too  restricted,  and  was  intended  to  be  en- 
larged." That  such  was  the  intention  of  the  legislature  is  rendered  more 
probable  by  the  very  wide  terms  of  the  sections  of  the  present  and  former 
enactments  (37  &  31)  as  to  proof  of  debts.  For  although  those  sections  do 
not,  like  sect.  171  of  the  act  of  1849,  provide  in  express  terms  that  every 
proveable  demand  may  be  set  off,  yet  since  every  liability  arising  out  of  con- 
tract is  now  capable  of  proof,  and  is  consequently  barred  by  the  bankrupt's 
order  of  discharge  (see  sect.  30) ,  to  hold  that  the  right  of  set-off  is  narrower 
than  the  right  of  proof  would  bring  about  the  anomalous  result,  to  meet  which 
the  doctrine  of  mutual  credit  was  introduced  (see  ante,  p.  333).  For  the 
creditor  would  be  precluded  from  setting  ofi"  claims  whicli  he  would  never- 
theless be  debarred  from  asserting  by  action,  and  would  therefore  be  obliged, 
while  paying  his  own  debt  in  full,  to  receive  back  from  the  bankrupt's  estate 
a  dividend  only  in  respect  of  such  liabilities  of  the  bankrupt  towards  him- 
self;  but  see  Ex  parte  Price,  In  re  Lankester,  L.  R.  10  Ch.  648,  a  case  de- 
cided upon  the  peculiar  nature  of  the  valuation  put  upon  the  claim  of  a 
policy-holder  in  the  winding  up  of  an  insurance  company.  The  policy-holder 
liad  himself  gone  into  liquidation,  being  indebted  to  the  insurance  company. 


1580  uosE  V.  hai:t. 

On  proof  hy  tin-  liquidators  of  tlu'  ronipany  n(;alM<4t  thf  estate  of  the  debtor. 
It  was  lifkl  that  th<>  trustee  could  not  set  off  tlie  estliuatetl  value  wlileh  had 
boeu  put  upon  the  policy.  In  h'x  part*-  Ihirnrii,  in  re  I-tret-sf,  U.  H.  9  fh.  21*3, 
which  was  decided  upon  the  late  act,  Lord  ScllHinie  C,  fcuartlH  hlmMvlf  from 
(■xprcssluj;  an  opinion  upon  the  etTect  of  the  additional  wonU  In  that  cajtr, 
Harnett  &  Co.  had  had  business  transactions  with  a  trader  who  iMM-nuie  bank* 
rupt,  and  nt  the  time  of  the  bankruptcy  the  bankrupt  oweil  Harnett  &  Co. 
:'>.i>10/..  and  Harnett  <&  Co.  owed  th<-  bankrupt  s.s/.,  In  respect  of  which  sum  he 
had  a  lien  u|>on  i;oo<ls  of  Harmtt  v^  Co.  In  his  possession.  Una  claim  by  the 
trustee  in  bankruptcy  that  Harnett  A  Ci».  should  pay  the  hhI.  in  full,  ami 
shoid<l  prove  for  the  whole  tuni  of  :<,i)I))/.  ai;alnst  the  banKnipt's  estate.  It 
was  held  that  the  latter  were  entitled  to  have  the  sum  of  n>*l.  set  nff  against 
their  claim,  so  as  to  free  the  kimhIh  from  the  lien,  ami  to  pn>vt<  for  the  bal- 
ance ai^alnst  the  bankrupt's  estate. 

llowevir,  In  h.r  purff  JlnHnttil,  rt-  M'iiitrr,  H  Ch.  I).  225.  47  I.  .1  Hkcy  .'>2. 
HaciMi.  C  .F.,  put  a  siunewhat  narrower  construction  on  the  act.  In  that  ca.He, 
a  contractor  failed  to  carry  out  his  contract.  an<l  had  i;one  Into  Ihpdilatlon. 
'riurc  was  a  clause  In  the  aifreemeiit  empowerln:;  the  employers  to  unr  the 
plant  left  by  the  contractor  on  the  prendses  In  case  of  his  default,  and  a 
portion  had  accordlnirly  been  used  up  l>y  a  contractor  «luly  substltutoti  under 
the  contract.  The  balance  renuilnini;  unuseil  was  sold  by  aun-ement,  and  the 
.sum  realised  was  claimed  by  the  trustees.  The  employers  siumht  to  Hct  off 
the  dama;;es  sustained  by  them  throiitfh  the  breach  of  contract,  contending 
that  thi-rc  had  been  mutual  dealini;s  between  them  and  the  delttor.  In  respect 
of  which  they  wen-  entitled  to  the  set-otf.  This  contention  the  learned  judjje 
overruled,  lielni;  of  opiidon  that  Inasmuch  as  the  employers  aci|ulrt*4l  no 
property  I'l  the  plant,  but  only  a  rluht  to  use  It  in  a  certain  event,  there  had 
not  under  the  circumstances  been  a  dealin;:  in  respect  of  the  sum  realised. 
In  /'tilt  V.  ./otif-M,  H  1^.  H.  1).  147.  ."il  I..  .1.  li  H.  12H,  the  Court  of  Appeal 
followetl  Jinnih  v.  I/nlchin^im  In  holdlni;  the  clause  applicable  to  a  claim  for 
uidl<|Uidated  ilamaires,  and  held  that  such  a  claim  inluht  Ix*  set  ofl*  In  a  coni- 
luou  law  action  l)roui;ht  by  a  tnistee  In  ll<|Ul<lation  In  Jurk  v.  h'ipfihuj.  *J 
il  H.  I>.  Iia;  .*>l  L.  .1.  g.  H.  4t'.:t,  It  was  held  that  a  claim  for  fraudulent 
misrepresentation  on  the  sale  «>f  a  chatt«d  by  a  banknipt  may  be  .set  off  against 
a  claim  l»y  the  tnistee  for  the  price. 

The  s«'t-otr  under  the  .s«'cilon  Is  not  optional  but  i-onipidsory.  and  It  would 
seem  that  the  existence  of  security  do«-s  not  atfect  Its  operation.  AV  /utrlr 
JiiirnPtt,  supra;  ami  see  .VcA7;ih»»»  v.  Arm.strnuij,  2  .\pp.  Cas.  .'>.11. 

Sect.  10  of  the  Judicature  .Vet.  l«7r>.  Imports  the  nde  of  set-otf.  with  the 
other  rules  in  force  for  the  time  beinc  under  the  law  of  hankniptcy  as  to 
debts  and  liabilities  proveable.  into  the  a*lminlstratlon  by  the  court  of  the 
assets  of  persons  whose  estatt-  is  iusutliclent  for  the  payment  of  their  debt.s, 
and  into  the  winiliui;  up  of  companies.  See  Mt-rseij  Steel,  Jtc.  <.'o.  v.  Saylor, 
;>  .\pp.  Ca.  4:u.] 

The  history  of  this  head  of  tlie  bankrui»t  laws  [<lown  to  that  date]  Is  so 
clearly,  and  at  the  same  time  brietly,  sketched  by  Lord  Chief  .lustice  Tindal, 
in  his  jud<;inent  in  the  case  of  Gihson  v.  lifll,  1  Hinjj.  X.  C.  753.  that  thi.s  note 
cannot  be  better  c(,nclude«l  than  l>y  extractiu};  it. 

"  The  principle,"  said  his  lordship.  ••  which  the  banknipt  laws  seem  to  h.ive 
had  in  view,  from  the  earliest  times  to  the  last  provisi<ms  made  therein,  is 
this,  that  where  two  persons  have  dealt  with  each  other  on  mutual  credit, 
and  one  of  them  becomes  bankrupt,  the  accouut  shall  l>e  settled   between 


HOSE   V.    HART.  1581 

them,  and  the  balance  only  payable  on  either  side.  That  this  was  the  practice 
of  the  commissioners  of  bankrupt,  long  before  any  statutory  provision  on 
the  subject,  appears  clear  from  the  two  earliest  decided  cases,  Anonymous, 
1  Mod.  215,  before  Lord  Chief  Justice  North,  and  Chapman  v.  Derby,  2  Vern. 
117.  The  first  statute  which  made  any  express  provision  on  the  subject  was 
the  expired  statute  4  &  5  Anne,  c.  17.  By  that  statute  it  was  enacted  in  the 
eleventh  section,  'that  whei'e  there  had  been  mutual  credit  given  between 
the  bankrupt  and  any  debtor,  and  the  accounts  are  open  and  unbalanced,  it 
shall  be  lawful  for  the  commissioners,  or  assignees,  to  adjust  the  account; 
and  the  debtor  shall  not  be  compelled  to  pay  more  than  shall  appear  to  be  due 
on  such  balance.'  This  provision  of  the  expired  statute  of  Anne  is  re-enacted 
in  the  twenty-eighth  section  of  5  G.  2,  c.  30,  with  some  variation  in  the 
expression,  that  section  enacting,  that  '  the  commissioners,  or  assignees, 
shall  state  the  account  between  them,  and  one  debt  may  be  set  against 
another,  and  Avhat  shall  happen  to  be  due  on  either  side,  on  the  balance  of 
such  accounts,  and  on  setting  such  debts  against  one  another,  and  no  more, 
shall  be  claimed  or  paid  on  either  side  respectively.'  This  statute  continued 
in  force  until  the  46th  G.  3,  c.  135, -s.  3,  which  provides,  that  where  thei'e  hath 
been  mutual  credit  given,  or  mutual  debts  between  the  bankrupt  and  any 
other  person,  '  one  debt  or  demand  may  be  set  against  the  other,  notwith- 
standing any  secret  act  of  bankruptcy  before  committed.'  The  same  language 
is  continued  in  the  last  statute,  6  G.  4,  c.  16.  So  that  from  the  earliest  prac- 
tice to  the  latest  provision  by  statute,  the  object  seems  to  have  been,  that 
the  account  should  be  stated,  as  between  merchant  and  merchant;  and  that 
whatever  would  be  in  ordinary  practice  a  pecuniary  item  in  such  account, 
should  be  the  subject  of  set-off." 


Set-off  is  the  setting  up  a  demand  by  the  defendant  to  coun- 
ter-balance that  of  the  plaintiff  in  whole  or  in  part ;  2  Bouv.  Diet. 
615 ;  Avery  v.  Brown,  31  Conn.  398,  401 ;  Kingman  v.  Draper, 
14  Bradw.  577.  It  is  often  called  a  cross-action  rather  than  a 
defence  ;  Mitchell  v.  McLean,  7  Fla.  329  ;  Everson  v.  Fry,  72 
Penn.  St.  326  ;  Curran  v.  Curran,  40  Ind.  473  ;  Lewis  v.  Denton, 
13  Iowa  441.  According-  to  the  common  law  "  mutual  debts 
were  cUstinct  and  inextinguishable  except  by  actual  payment 
or  release ; "  Commonwealth  v.  Clarkson,  1  Rawle  291. 
Although  it  is  stated  that  at  common  law  "  the  right  of  set-off 
is  limited  to  cases  of  mutual  connected  debts,  and  does  not 
extend  to  debts,  which  are  unconnected  with  each  other;" 
Hurlbert  v.  Pacific  Ins.  Co.,  2  Sumn.  471,  477. 

The  first  statute  authorizing  set-off  in  England  was  that  of 
2  Geo.  2  Ch.  22,  made  perpetual  by  that  of  8  Geo.  2  Ch.  4. 
Similar  statutes  have  been  j^assed  in  all  or  nearly  all  of  the 
states  of  the  Union.  The  decisions  of  the  courts  cannot  be 
always  harmonized,  as  their  purpose  is  frequently  to  interpret 
the  statutes.     There    are    main  points,  however,  upon  which 


158 J  UOSK    V.    IIAKT. 

there  is  little  or  no  disa'^ruement.  An  «*iuly  New  Jersey  statute 
on  set-off  is  referred  to  in  The  C.  H.  Sanford,  '2'2  Fed.  Kep.  863. 

How  far  the  claim  must  exist.  — •  It  must  Ih'  due  and  payahK'  at 
the  time  of  the  eomnu  luement  of  the  phiintifTs  aetion  ;  IslKTg 
V.  Howden,  S  Kxeh.  Hoii ;  Martin  v.  Kun/.mnlhr,  37  N.  Y.  3W  ; 
Henry  r.  Buth-r,  -Vl  Conn.  140  ;  Robinson  v.  S.itTord,  ')7  Me.  1»I3. 
An  unmatured  (h-ht  cannot  he  set  off;  Whitaker  r.  Turnbull, 
18  N.  J.  Law  172.  Sif  Iluusti.n  v.  FeUows,  '21  Vt.  O.'U ; 
Tessier  v.  Kn<,dehart,  18  .Nrh.  l»;7  ;  (innnis  v.  (  lutT.  Ill  I'.nn. 
St.  r>\-2:  M<La(hlin  r  I5ntt,  K).-,  N.  Y.  :'.1>1  ;  Fllis  r.  (  mhran, 
117  111.  loM;  Wood  r.  Hrush,  12  ("al.  lil'l ;  Patterson  r.  Wri^dit, 
()4  Wis.  2s\\.  The  same  rule  applies  to  a  eounter-idaim; 
Kramer  r.  Fleetrie  Lii,'ht  Co.,  !»">  N.  C.  -77.  And  to  a  demaml 
in  exility;  Keppy  r.  Keppy,  4»J  .Mo.^.')71.  It  luus  been  held  that 
a  present  claim  apiinst  an  insolvent  estate  may  Ihj  set  off  when 
ihf  debt  ajjainst  which  the  set-off  is  claimed  matured  after 
tleceased  in.solvent's  death;  Skiles  v.  Ibiuston,  110  Penn.  St. 
204.  But  see  "  Demands  aj,minst  executoi-sand  administratoi-s," 
infra,  (ienerally,  in  the  alwenee  of  statute,  the  claim  which  is 
tlu'  subject  «>f  set-oiT  nuist  i^row  out  of  the  transaction.  See 
Hnliock  r.  Horn,  44  Ohio  St.4'J0;  Heecher  r.  Baldwin, />/i  Conn. 
4l!t:   l-Mi.l  '.  i'.urchard,  1:J0  .Ma.ss.  424. 

Torts  and  replevin.  —  Damai^es  from  torts  cannot  l>e  set  f)ff 
at  law  or  in  etpiity  ;  Shelly  r.  Vanarsdoll,  2*}  Ind.  043;  Har- 
ris r.  Uivers,  53  Id.  21t);  Hall's  Appeal,  40  IVnn.  St.  409; 
Matthews  r.  Lindsay,  20  Fla.  J)02,  1)77  ;  Vancleave  v.  Beach, 
110  Ind.  201>.  ( )ne  trespass  cannot  Ih,*  set  off  in  bar  of  another  ; 
Ilari^reavcs  r.  Kind)erly,  20  W.  \'a.  787,  8o0  ;  Shelly  v.  Vanars- 
doll, siii>ri:.  Damajifes  sustained  by  annoying  suits,  malicious 
])roseculions,  slander  of  title,  injury  to  one's  credit  occasioned 
b}'  such  procccdiiiL,'s,  thoui^h  lelatin^  to  the  subject-matter  of 
plaintiff's  suit  cannot  be  set  off;  Matthews  r.  Lindsay,  «*//>n/. 
A  demand  arising  from  tort,  cannot  be  set  off  against  one  aris- 
ing out  of  contract ;  Indianai)olis  R.  R.  Co.  v.  Ballard,  22  Ind. 
448.  See  Hall  v.  Penny,  13  Fla.  G21 ;  Hudson  v.  Nute,  4.')  \'t. 
66 ;  Street  v.  Br^an,  65  No.  Car.  619.  But  damages  may  be 
set  off  in  certain  cases  where  the  statutes  so  provide  or  the  set- 
off is,  perhaps,  claimed  as  a  remedy  after  the  nature  of  recoui>- 
ment;  Campbells.  Fox,  11  Iowa  318;  Bulkeley  v.  Welch,  31 
Conn.  839 ;  Roethke  v.  Philip  Best  Brewing  Co.,  33  Mich.  340  ; 
Thompson  v.  Congdou,  43  Vt.  396 ;  Nordeu  v.  Jones,  33  Wis. 
600. 


KOSE   V.   HART.  1583 

In  replevin,  a  set-off  is  not  allowable  ;  Fairman  v.  Fluck,  5 
Watts  516  ;  Blue  Valley  Bank  v.  Bane,  20  Neb.  294 ;  Ward  v. 
Anderberg,  36  Minn.  300  ;  McDonald  v.  McDonald,  55  Mich. 
155  ;  Wright  v.  Quirk,  105  Mass.  44  ;  Stow  v.  Yarwood,  14  111. 
424.  But  in  cases  controlled  by  statutes,  or  where  special  cir- 
cumstances apply,  set-off  is  allowable ;  Bonte  v.  Hall,  2  Cin. 
Ohio  33 ;  Home  Sewing  Machine  Co.  v.  Zachary,  2  Tenn.  Ch. 
478;  Murray  v.  Pennington,  3  Gratt.  91. 

Unliquidated  demands.  —  It  is  a  general  rule  that  these  are  not 
the  subject  of  set-off,  either  at  law  or  in  equity ;  Tracey  v. 
Grant,  137  Mass.  181 ;  Bonaud  v.  Sorrel,  21  Ga.  108  ;  Montague 
V.  Boston  Iron  Works,  97  Mass.  502 ;  Casper  v.  Thigpen,  48 
Miss.  635 ;  Hall  v.  Glidden,  39  Me.  445  ;  The  Zouave,  29  Fed. 
Rep.  296;  Gelshenen  v.  Harris,  26  Id.  680 ;  Hopkins  v.  Stockdale, 
117  Penn.  St.  365  ;  West  v.  Hayes,  104  Ind.  251.  Unliquidated 
damages  are  when  they  are  not  ascertained,  or  when  there  are 
no  facts  from  which  the  amount  may  be  ascertained  by  calcula- 
tion ;  Robison  v.  Hibbs,  48  111.  408.  See  Smith  v.  Eddy,  1  R.  I. 
476  ;  Corey  v.  Janes,  15  Gray  543  ;  Stevens  v.  Blen,  39  Me.  420; 
Bell  V.  Ward,  10  R.  I.  503;  Drew  v.  Towle,  27  N.  H.  412; 
Smith  V.  Warner,  14  Mich.  152.  But  in  some  states  unliqui- 
dated damages  growing  out  of  contracts  are  made  the  subject 
of  set-off  by  statute.  See  Gardner  v.  Risher,  35  Kans.  93 ;  St. 
Louis  R.  R.  Co.  V.  Chenault,  36  Id.  51 ;  The  Tangier,  32  Fed. 
Rep.  230 ;  Sheldon  v.  Martin,  65  Tex.  409 ;  Knott  v.  Burwell, 
96  N.  C.  272 ;  Speers  v.  Sterrett,  29  Penn.  St.  192 ;  Robinson  v. 
L'Engle,  13  Fla.  482 ;  Keyes  v.  Western  Vermont  Slate  Co.,  34 
Vt.  81 ;  Eads  v.  Murphy,  52  Ala.  520 ;  Sledge  v.  Swift,  53  Id.  110. 

Law  and  equity.  —  The  power  of  allowing  an  equitable  off-set 
"should  be  ver}^  cautiously  exerted,  and  only  in  a  case  where  the 
equity  involved  is  entirely  clear  and  certain.  It  is  never  justi- 
fied, save  where  other  remedies  are  impossible,  and  where  the 
demand  allowed  is  put  beyond  reasonable  doubt;  "  Armstrong 
V.  McKelvey,  104  N.  Y.  179,  185.  See  Merriam  v.  Childs,  93 
Mo.  131.  There  is  a  long  discussion  of  the  subject  of  equitable 
set-off  in  Nuzum  v.  Morris,  25  W.  Va.  559.  See  Payne  v.  Webb, 
29  W.  Va.  627.  Except  under  particular  circumstances,  joint 
and  separate  debts,  or  debts  accruing  in  different  rights,  will 
not,  for  the  want  of  mutuality  in  the  cross  demands,  be  set  off 
in  equity  against  each  other ;  Glover  v.  Hembree,  82  Ala.  324, 
'327.     Equity  is  frequently  resorted  to  in  case  of  insolvency. 


1."»K4  knsi:  v.   iiai:t. 

Sec  (iimplKll  V.  Connui,  TH  Ala.  211;  FarriM  v.  IIouHlon,  78 
Ala.  '2'i();  (liik'iui  Kailroiul  Co.  v.  Kiinor,  11»>  111.  0.> ;  Fourth 
Nut.  Bank  r.  City  Bank,  G8  1(1,31)8;  Littletieia  r.  Albany  Bank, 
1)7  N.  Y.  r)Hl.  See  SpanMin^'  r.  Backu.s,  liiJ  Muss,  rtu'.i;  Sulig- 
mann  v.  II«lK'r  Clothinj^  Co.,  ♦•l*  Wis.  410.  It  is  said  that  a  set- 
off may  l>c'  ;illo\vt'(l  in  tMjiiity  in  the  same  eases  a.s  at  law.  First 
Nat.  Biink  r.  Burnuni  Iron  Works,  58  Mieh.  1*J4.  See  Scain- 
nion  r.  Kinih;ill,  [)'2  V.  S.  M'2.  See  "  In  case  of  insolvency," 
in/ni.  For  a  case  in  a  I'niteil  States  court  wliirh  held  that  a 
plea  of  set-off  whiih  (ontains  a  purely  e<|uitahlo  defence  to  an 
action  on  a  promissory  note,  cannot  be  admitted,  alth«»ui^li  such 
defence  would  Ik*  allowed  in  the  state  where  the  note  was  made. 
See  Snyder  r.  Pharo,  2o  Fed.  Uep.  398.  In  some  stutes,  an 
0(juital)lc  claim  may  be  set  off  in  a  suit  at  law;  .Vlwater  v. 
Schenck,  9  Wis.  V\0;  Chandler  r.  Drew,  6  N.  II.  ICIK  In  a 
lat<!  case,  it  was  held  that  ahhou;.,di  a  (h'fendant  at  law,  with  a 
cl;iin«  not  avaihihle  in  set-<»ff,  c;innot  usually  U«  relieved  in 
e(;uity  aj^ainst  a  solvent  plaintiff,  yet  he  can  Ik*  relieved  if  the 
t'laim  arises  out  of  the  matter  in  controversy,  or  is  an  agreement 
so  connected  therewith,  m".  if  olwerved  to  destr<»y  tlie  demand  in 
suit;  Baker  r.  Hawkins,  14  U.  I.  3.">9.  Many  (»f  the  cases  — 
especially  old  ones — draw  elalntrate  distinctions  l>etween  law 
aiul  ecpiity  in  relation  to  off-set.  hut  the  principles  are  largely 
treated  under  the  subject  «)f  '*  mutuality,"  in/nt. 

How  far  claim  must  be  legal.  —  Deuiands  must  U?  Ic^'al :  Payne 
V.  L..u(loM,:{  r.ihl.  (  Ky.)ii.'»0;  Caldwdl  »•.  Caldwell,  2  Bush  (Ky.) 
44ti :  (  hicago  Dock  Co.  v.  Duidap,  32  111.  2<)7.  See  Hall  r.  Kim- 
mer,  01  Mich.  2»J9.  Services  to  the  plaintiff  which  ar--  a  fraud 
Uj)on  a  third  person  cannot  l>e  set  off;  I'.vcrnghim  v.  ICnsworth, 
7  Wiiid.  32G;  Callehan  r.  Stafford,  Is  La.  Ann.  ;'>;')«>.  The 
part  of  a  divisible  demand  which  is  legal  may  Ix)  set  off:  Rice 
t:  Welling,  .")  Wend.  o'Jo ;   .McCraney  v.  Alden,  46  Barb.  272. 

Mutuality.  —  '^  The  claim  asserted  as  a  .setniff  must  Ix*  held  by 
the  i)arty  who  asserts  it,  ami  not  by  him  and  another  jointly," 
and  so  of  setting  off  a  several  debt  against  a  joint ;  Proctor  v. 
Cole,  104  Ind.  373,  370;  Hush  v.  Thompson,  112  Id.  158,  1»)2; 
Griffin  v.  Cox,  30  Id.  242;  Booe  v.  Watson,  13  Id.  387;  Carter 
V.  Berkshire,  8  Blackf.  103;  Richardson  v.  St.  Joseph  Iron  Co., 
5  Id.  14«);  Ingols  v.  Plimpton,  10  Col.  535;  Ryan  i-.  Barger,  16 
111.28;  Dmbon  i-.  Kelley,  22  Ind.  1S3;  Brown  v.  Warren,  43 
N.  II.  430;  Coates  v.  Preston.  105   III.  470;  Clark  v.  Taylor, 


KOSE    V.    HAKT. 


1585 


68  Ala.  453.     A  debt  accruing  to  a  person  in  las  individual 
cai3acity    cannot   be  set  off   against  a  debt    due  from  him  as 
trustee ;  First  National  Bank  v.  Barnum  Works,  58  Mich.  124. 
See  Lynde  v.  Davenport,  57  Vt.  597 ;  Vason  v.  Beall,  58  Ga. 
500 ;  Jones  v.  Brevard,  59  Ala.  499 ;  Collins  v.  Greene,  67  Id. 
211 ;  Robertson  v.  Garshwiler,  81  Ind.  463.     The  principle  ap- 
plies in  the  case  of  all  mutual  accounts ;   Peine  v.  Lewis,  64 
Miss.  96;  Re  Cleveland  Ins.  Co.,  22  F.  R.  200;  Penniman  v. 
Loney,  40  Md.  471.    See  Perry  v.  Chesley,  77  Me.  393.     But  it 
has  been  held  that  a  judgment  in  favor  of  A.  and  against  B.  and 
C.  may  be  pleaded  as  an  offset  to  an  action  by  B.  against  A ; 
Moody  V.  Willis,  41  Miss.  347 ;  Peyton  v.  Planters'  Compress 
Co.,  63  Id.  410.     The  converse  of  the  first  proposition  is  gen- 
erally true,  that  a  separate  debt  cannot  be  set  off  against  a  joint 
one  ;  Howe  v.  Sheppard,  2  Sum.  409  ;  McDowell  v.  Tyson,  14 
S.  &  R.  300 ;    Bridgham  v.  Tileston,  5  Allen  371  ;    Wilson  v. 
Keedy,  8  Gill  195.     The  same  rule  applies  in  equity,  although 
subject -to   exception;   Home   v.  Sheppard,  supra;   Brewer  v. 
Norcross,  17  N.  J.  Eq.  219;  Story's  Eq.  Jur.  §  1457.     And  the 
rule  is  at  law  sometimes  qualified  by  agreement  of  parties ;  Per- 
kins V.  Hawkins,  9  Gratt.  649;  Smith  v.  Myler,  22  Penn.  St.  36, 
40.     And  in  cases  of  insolvency ;  Phelps  v.  Reeder,  39  111.  172. 
In  Pennsylvania  it  has  been  held  that  one  of  two  or  more 
defendants  may  set  off  his  individual  claim  against  the  plain- 
tiff's joint  claim ;  Miller  v.  Bomberger,  76  Penn.  St.  78.     See 
Kent  V.  Rogers,  24  Mo.  306 ;  Dunn  v.  West,  5  B.  Monr.  376. 
And  such  set-offs  are  allowed  in  many  cases  by  liberal  statutes ; 
Threlkeld  v.  Dobbins,  45  Ga.  144 ;  Redman  v.  Malvin,  23  Iowa 
296 ;  Sledge  v.  Swift,  53  Ala.  110. 

Partnership.  —  The  debt  of  one  partner  cannot  be  set  off 
ao-ainst  that  of  a  partnership,  and  vice  versa ;  Collier  v.  Dyer, 
27  Ark.  478 ;  Harlow  v.  Rosser,  28  Ga.  219 ;  Ward  v.  Newell, 
37  Tex.  261 ;  Meeker  v.  Thompson,  43  Conn.  77 ;  Ross  v.  Pear- 
son, 21  Ala.  473 ;  Watts  v.  Sayre,  76  Ala.  397 ;  Reed  v.  Whit- 
ney, 7  Gray  533;  McKay  v.  Overton,  65  Tex.  82;  Gardiner  v. 
Fargo,  58  Mich.  72 ;  Wilson  v.  Runkel,  38  Wis.  526 ;  Singerly 
V.  Fox,  75  Penn.  St.  112;  Coleman  v.  Elmore,  31  F.  R.  391. 
Where  a  partner  wrongfully  uses  partnership  property  to  pay 
his  own  debts,  there  is  relief  in  equity ;  Cornells  v.  Stanhope, 
14  R.  I.  97.  See  Weaver  v.  Rogers,  44  N.  H.  112.  In  an  action 
for  debt  due  from  defendant  to  plaintiff,  the  former  cannot  set 


l.'.sr.  l:ii-,F.    V.    MAUT. 

oil  .1  «lcljt  tluu  from  llio  hitter  t<>  a  firm  in  which  l>oth  are  [>art- 
iiers  ;  II<juston  i*.  Brown,  --"J  Ark.  'A'V-i;  L:in<l  v.  (  iiuan,  I'J  Ala. 
•J!»T.  See  Scott  i>.  ('iinii)lx.'ll,  ;50  Id.  7-JH;  Sjun[)le  v.  Grillith,  5 
Iowa  370.  An  u«^ree«l  ImUuicu  clue  from  one  partner  to  another 
upon  a  partnershij)  .settlenuMit  Is  it  j^jood  set-off;  Dana  r.  Barrett, 
;>  .1.  .1.  .M.ir.sli.  (5.  In  a  suit  hy  a  .surviving  partner  fi>r  u  debt 
diif  fioiii  tin-  tirni,  lh«'  defi-ndant  may  set  off  a  deht  due  to  him 
fioin  tilt'  surviving,'  partner  ah>ne:  Ilolhrook  r.  Lackey,  13  Met. 
l:'.ii;  i;nsh  c.  ("lark,  127  Miuss.  Ill,  111';  .Miller  r.'  Franklin 
liank,  1  Pai^^e  444.  So  in  most  actions  hy  and  a;^ainst  snrviv* 
in^'  partners  there  seem  to  he  liU'ral  ri;,'hts  of  set-«»ff;  Masterson 
f.  (loiMllc'tt,  40  Te.x.  402;  Newlierry  «». 'rrowhrid;^e,  13  Mich. 
203;  Wain  r.  llewes,  /i  S.  ».V  K.  408.  So  there  may  be  set-off 
ill  the  case  of  sju'cial  agreements  «)r  particular  Ixiok  charges; 
Hood  r.  Uiley,  lo  N.  J.  Law  127;  Land.  r.  Brolaski,  3H  Mo.  ol. 
See  Cillcy  r.  \'an  Patten,  oM  Miiji.  404.  It  is  htld  that  co- 
partnci-s  trusteed  may  set  off  a  (lain)  due  from  the  defendant  to 
»>iit'  of  tin-  partners;    Ilohiiison  r.  Furhush,  34  Me.  .'>0!».  • 

Husband  and  wife.  —  1  he  .same  general  principle  applies 
wliere  a  set-off  is  claimed  in  ease  of  demands  relating  to 
husband  and  wife.  In  most  ciuses  there  can  l>e  no  set-off; 
.Morris  r  Booth,  S  Ala.  «.>07  ;  (Ua/ebrook  v.  Itigland,  H  (iratt. 
332;  Smith  v.  Johnson,  5  Harr.  40;  Jamison  r.  Brady,  0  S.  & 
K.  400;  Pierce  r.  Dustin,  21  N.  11.  417;  Xaglee  r.  Ingersoll, 
7  Pcnn.  St.  1S.">;  Bent/,  i:  Bent/.,  l»o  Peiin.  St.  210;  Doyle  v. 
Orr,  ol  Mi.ss.  233;  Hendricks  c.  Toole,  2I>  .Mi.-h.  340;  Mu.ssel- 
man  r.  (Jalligher,  •■)2  Iowa  3S3 ;  Challiss  r.  Wylie,  So  Kans. 
r.OO;  Sloteman  r.  Thomas  Mfg.  Co.,  ♦>«)  Wis.  41»9.  Where  the 
obligees  of  a  bond  sued  for  the  use  «»f  a  femt-  j)laintitT  and 
husband,  an  account  was  set  off  of  medical  services  to  the  wife 
before  marriage  ;  Oary  v.  Johnson,  72  \.  C.  08.  See  Johnson 
V.  King,  20  Ala.  270.  A  promissory  n«)te  executed  by  husband 
and  wife,  the  latter  as  surety,  is  available  as  a  set-4^)ff  against  a 
note  executed  to  the  husband;  .\J)shire   v.  Corey,  113  Ind.  484. 

Principal  and  agent.  —  The  debt  of  an  agent  cannot  be  offset 
against  one  iluc  the  principal;  Wilson  r.  Codman,  3  Cr.  103. 
Where  a  broker  sells  goods  without  any  possession  of  the  same, 
and  the  purchaser  knows  it,  receiving  the  same  from  the  prin- 
cipal, the  purchaser  cannot  set  off  against  the  seller  a  debt  due 
to  him  from  the  broker ;  Dunn  v.  Wright,  51  Barb.  244.  See 
New  Orleans  v.  Finnerty,  27  La.  Ann.  681,  21  Am.  Rep.  569; 


ROSE   V.    HART.  1587 

Carman  v.  Garrison,  13  Penn.  St.  158 ;  Forney  v.  Shipp,  4 
Jones'  (N.  C.)  Law  527.  But  the  purchaser  may  treat  the 
agent  as  owner,  and  in  an  action  brought  by  the  principal  for 
the  price  may  set  off  a  claim  he  has  against  the  agent,  provided 
the  purchaser  supposed  the  agent  was  owner  and  there  were  no 
circumstances  to  put  him  on  inquiry ;  Frame  v.  William  Penn 
Co.,  97  Penn.  St.  309;  Huntington  v.  Knox,  7  Cush.  371; 
Nichols  V.  Martin,  35  Hun  168,  170  ;  Wright  v.  Cabot,  89  N.  Y. 
670 ;  McLachlin  v.  Brett,  105  N.  Y.  391 ;  Hurlbert  v.  Pacific 
Ins.  Co.,  2  Sum.  471.  See  Granger  v.  Hathaway,  17  Mich.  500 ; 
Noble  V.  Leary,  37  Ind.  186 ;  White  v.  Jaudon,  9  Bosw.  (N.  Y.) 
415. 

Principal  and  surety.  —  The  question  of  mutuality  in  case  of 
demands  of  principal  and  surety  is  largely  one  of  statute,  and 
often  involves  equitable  principles ;  Knour  v.  Dick,  14  Ind.  20  ; 
Davis  V.  Milburn,  3  Iowa  163, 167  ;  Newell  v.  Salmons,  22  Barb. 
647 ;  Crist  v.  Brindle,  2  Rawle  121.  "  The  principal  debtor  is 
the  real  debtor,  and  the  surety  but  security  for  the  payment  of 
the  principal's  separate  debt ;  and  offsetting  a  demand  in  favor 
of  the  principal  debtor  alone,  when  sued  with  his  surety,  is 
setting  off  against  each  other  what  may  be  regarded  as  essen- 
tially mutual  debts;"  Himrod  v.  Baugh,  85  111.  435,  438; 
Mahurin  v.  Pearson,  8  N.  H.  539 ;  Concord  v.  Pillsbury,  33  Id. 
310.  The  note  of  a  principal  and  surety  may  be  set  off  against 
a  note  of  such  principal  alone ;  Andrews  v.  Varrell,  46  Id.  17. 
See  Newell  v.  Salmons,  supra ;  Myers  v.  State,  45  Ind.  160. 
But  it  has  been  held  that  there  can  be  no  set-off  unless  by  con- 
sent of  the  principal;  Lynch  v.  Bragg,  13  Ala.  773  ;  Woodruff  v. 
State,  7  Ark.  333 ;  Dart  v.  Sherwood,  7  Wis.  523.  But  set-off 
is  generally  allowed  in  Indiana  "when  the  action  is  upon  a 
note  or  other  contract  against  several  defendants,  any  one  of 
whom  is  principal  and  the  others  sureties  therein ; "  Sefton  v. 
Hargett,  113  Ind.  592,  594.  But  set-off  is  often  denied  where 
circumstances  are  exceptional ;  Gentry  v.  Jones,  6  J.  J.  Marsh. 
148  ;  Holden  v.  Gilbert,  7  Paige  208  ;  Cox  v.  Cooper,  3  Ala.  256  ; 
State  V.  Modrell,  15  Mo.  421 ;  Peine  v.  Lewis,  64  Miss.  96.  And 
a  suret}^  when  sued  alone  cannot,  "  without  the  assent  of  the 
principal,  set  off  a  debt  due  the  principal  from  the  plaintiff  in 
the  suit,  to  discharge  him,  the  surety,  from  his  liability;"  Graff 
V.  Kalin,  18  Bradw.  485,  487. 

In  case  of  assignment.  —  A   set-off,   not  due  to  the  defendant 


1'j8H  K08K    V.    MAKT. 

but  iissignt'd  to  Imii,  must  Uaw  Ik-i-u  ni;uh',  t»>  i»c  v.ilnl,  Ix'fore 
tliu  conuueuit'iiuMit  nf  ilu-  suit;  Miirtiu  r.  W'illuinis,  IT  JoIiiih. 
330.  See  Wjilker  c.  McKay,  2  M«t.  (Ky.)  lilM  ;  Th..in|..sc)n  r.  Mc- 
C'lelliind,  2'>  IViiii.  St.  475;  Spceis  r.  Stenvtt,  Id.  ll»-J;  F(.llett 
t'.  Buytr,  4  Ohio  St.  .'iM;  Olnisteinl  v.  Stutt,  5o  Conn.  l'2o.  Ah 
to  proniis.soiy  note.s,  see  Wliitaker  v.  'rurnbuU,  IH  N.  J.  Laiw 
172;  Joluison  r.  Conistock,  ♦>  Hill  10.  A.s  to  a  ImjucI,  hco 
liackus  /•.  SpauMinjr.  12'»  .Mass.  •_»:54  ;  H  .b.hns.  l')2;  Itu.ssell  v. 
l.illit^'ow,  1  hay  {S.i'.)  4:57;  Kiddick  r.  Moore,  ♦;.">  X.  C.  3«2. 
Tlif  lioMi'i-  l»y  delivery  of  a  non-nej^otiiible  note  eannot  set  off 
the  sanu!  in  an  action  against  hitn  by  tlu«  niakrr;  Ayre.H  v. 
MeConnel,  1')  111.  230.  See  Ilickerson  r.  .MeFaddin,  1  Swan 
(Tenn.)  2iiH.  C'luwes  in  aciiun  assijjned  eonditionally  cannot 
beset  ofT;  Shryock  v.  Hasehore,  H'2  iVnn.  St.  l')9;  .MeDade  v. 
Mead,  IM  Ala.  214;  McDonald  r.  Ilarriscm,  12  Mo.  447.  An 
u.ssi^'n(!e  of  a  eontract  for  the  payment  of  money  liolils  it  free 
from  any  oflfsets  in  favor  of  tlie  debtor  apiinst  the  UMsi^nor, 
created  after  notice  to  the  debtor  of  the  assignment.  See  Mar- 
tine  r.  Willis,  2  K.  I).  Smilii  ( .\.  V.)  524;  .Solonu.n  c  Holt,  3 
Id.  131);  Robinson  r.  Swijjart,  13  Ark.  71.  Stime  statutes  pro- 
vide that  assiirnmcnt  shall  not  In-ar  sct-<dT ;  (Janlner  e.  Kisher, 
35  Kans.  1»3.  In  a  suit  by  the  assignee  after  nuiturity  of  a 
j)romi.ssory  note,  it  is  a  ;;oo<I  reply  to  an  answer  of  Met-off  by  the 
maker  aj,'ainst  the  assii,Mior,  that  the  maker  is  indebted  to  such 
assii^n()r  in  ii  sum  in  excess  of  that  claimed  as  a  set-ofl";  .Meeker 
r.  Shanks,  112  Ind.  207.  See  Lucas  v.  The  Kast  Co.,  3M  Hun 
581. 

In  case  of  Insolvency.  -  Where  the  assignees  ni  pcison.il  rep- 
resentatives of  a  bankrupt  or  insolvent  are  plaintitTs  or  defend- 
ants, liberal  rijjhts  of  set-off  are  pnmted  by  statute,  or  e(|uitable 
}»riniiples  are  adopted  in  many  states.  Often  a  pencral  \ki\- 
anciuLr  of  mutual  demands  is  allowed  irrespective  of  the  period 
wlifii  they  became  due  or  the  person  in  whom  the  rijjht  of  action 
is  vested.  See  .Mdrich  v.  ('amplvll,  4  (iray  284;  Clarke  r. 
Ilawkin.s,  5  K.  I.  21l>,  224;  Morrow  r.  Hri.i;ht,  20  Mo.  298;  Ray- 
mond r.  Green,  12  Neb.  215,  220  ;  Marks  v.  Barker,  1  Wa^ih. 
C.  C.  178;  Jones  v.  Robinson,  2B  Harb.  310.  But  debts  pur- 
cbased  with  knowledge  of  tlie  debtor ;  insolvency  or  insolvent 
condition  and  nt)tice  to  the  debtor  of  the  purchase  cannot  l)e 
set  off  in  an  action  by  the  assignee  upon  a  debt  due  from  tlie 
purcliaser  to  the  debtor:  Smith   r.  Hill.  8  (Jray  572:  Long  v. 


HOSE    V.    HART.  1589 

Penn.  Ins.  Co.,  6  Penn.  St.  421.  Old  cases  in  whicli  no  set-off 
was  allowed  are  Henriques  v.  Hone,  2  Edw.  Ch.  (N.  Y.)  120 ; 
Boinod  v.  Pelosi,  2  Dall.  (Penn.)  43 ;  Bateman  v.  Connor,  6 
N.  J.  Law  104 ;  Johnson  v.  Bloodgood,  1  Johns.  Cas.  51.  It  has 
been  held  in  an  action  by  the  assignee  of  a  debtor  for  the  benefit 
of  creditors,  against  a  creditor  for  the  conversion  of  notes  of 
the  debtor  held  as  collateral,  that  the  defendant  cannot  set  off 
the  debtor's  general  indebtedness ;  Lane  v.  Bailey,  47  Barb.  395. 
And  in  an  action  by  an  assignee  on  a  debt  due  after  the  volun- 
tary assignment,  the  defendant  may  set  off  a  debt  due  from  the 
assignor  at  the  time  of  the  assignment.  A  bank  made  an  as- 
signment hokUng  the  defendant's  note  not  due  and  was  indebted 
to  the  defendant  for  deposits  exceeding  the  note.  In  an  action 
on  the  note  after  maturity  the  defendant  was  allowed  to  offset 
the  indebtedness  to  him;  Jordan  v.  Sharlock,  84  Penn.  St.  866; 
s.  c.  24  Am.  Rep.  198.  See  Matter  of  Fulton's  Estate,  51  Penn. 
St.  204  ;  Rubey  v.  Watson,  22  Mo.  App.  428 ;  Skiles  v.  Houston, 
110  Penn.  St.  254.  A  similar  rule  seems  to  have  been  adopted 
in  New  York;  New  Amsterdam  Bank  v.  Tartter,  4  Abb.  New 
Cas.  215 ;  s.  c.  54  How.  385 ;  Fort  v.  McCully,  59  Barb.  87.  See, 
also,  Finnell  ik  Nesbit,  16  B.  Mon.  351.  But  in  Connecticut  a 
depositor  upon  the  insolvency  of  a  savings  bank  cannot  set  off 
his  deposit  against  a  debt  due  from  him  to  the  bank,  unless  the 
deposit  w^as  made  to  be  applied  in  payment  of  the  indebtedness 
to  that  amount  with  the  knowledge  of  the  officers ;  Osborn  v. 
Byrne,  43  Conn.  155 ;  s.  c.  21  Am.  Rep.  641.  A  bank  indebted 
to  an  insolvent  depositor  cannot  purchase  a  claim  against  the  in- 
solvent estate  and  offset  it ;  Union  Bank  v.  Hicks,  67  Wis.  189. 
See  Re  Cleveland  Ins.  Co.,  22  F.  R.  200 ;  Fourth  Nat.  Bank  v. 
City  Nat.  Bank,  68  111.  398 ;  Smith  v.  Felton,  43  N.  Y.  419 ;  Case 
V.  Cannon,  23  La.  Ann.  112. 

This  principle  of  set-off  is  extended  to  the  assignees  or 
receivers  of  insurance  companies,  and  the  latter's  customers. 
These  have  been  allowed  to  set  off  the  amount  due  for  losses, 
although  not  definitely  ascertained  in  a  suit  for  premiums  by 
the  assignees  or  receivers;  Holbrook  v.  Receivers,  6  Paige  220. 
But  where  at  the  time  of  the  receiver's  appointment  the  com- 
pany had  claims  against  the  defendant,  who  held  two  of  the 
company's  endowment  policies  not  yet  due,  in  which  it  was 
to  pay  the  sum  insured  to  his  wife  upon  his  death  prior  to  a 
certain  date,  and  if  he  was  living,  then  to  him,  it  was  held  in 


l.V.)U  KOSK    V.    HAKT. 

an  action  on  the  claims  that  the  defendant  couUl  not  Ket  off  tho 
reserve  value  of  the  policies;  Ne\viond>  v.  Alniy,  IM>  N.  Y.  308. 
See  R*'  Clevthuul  Ins.  ('.).,  '22  V  K.  J<M);  [iynu  r.  Anj;lesea,  12 
At.  Kep.  fi'V.K  Where  a  manager  was  employed  hy  tho  receiver 
vi  an  insolvent  corporation  to  perform  the  hitter's  duties,  and 
an  amount  from  the  proceeils  of  the  mortj^'aj^e  was  awiirded  to 
tho  receiver  as  compensation,  and  ho  was  directed  to  pay  the 
manat^cr  a  jjortion  thtreof,  it  was  held  that  the  inrlrhtrdnesji 
from  tlu'  manager  to  the  rec«'ivcr  in  a  lar;^er  amount  l)cing 
admitted  a  petition  hy  the  manaj^er  fi»r  an  order  compelling  the 
receiver  to  pay  him  the  amount  M{>ecitiod  should  Im*  dismissed ; 
Gat/mer  u.  rinlailelphia  Railway  Co.,  31>  N.  J.  Kip  'W.i.  The 
following  ca.ses  are  important  in  their  treatment  of  the  sid>ject 
as  applicahlo  to  the  estates  of  deceased  in.sol vents. 

"In  the  settlemi'iit  of  the  estates  of  decease<l  insolvents,  tjio 
analogii  al  rule  followi-d  here  in  reganl  to  set-off  is,  as  it  is  in 
other  states,  the  equitahle  rule  of  tho  l>ankrupt  systems  of  Kng- 
land  and  the  I'nittMl  States;  that  is,  without  regard  to  any 
special  connection  In'tween  the  claims  sought  to  Ihj  set  off,  to 
sink  the  sum  due  to  the  insolvent  hy  the  amount  of  tho  sum 
actually  <luc  from  him  to  his  dehtor,  and,  in  truth,  to  hold  the 
latter  to  l)e  a  dehtor  to  the  estate  oidy  for  the  halance;"  (Marko 
V.  Ilawkin.s,  o  K.  I.  210,  224;  McD.'.nahl  r.  Welwter,  2  .M;uhs. 
40H;  Irons  v.  Irons,  ')  K.  I.  2C>\.  It  wjuh  acconlingly  stated  in 
Clarke  v.  Hawkins  that  the  analogy  should  applv  to  the  wind- 
ing up  of  insolvent  corporations  as  in  N»'w  York  and  New 
Jei-sey ;  McLaren  r.  IVnnington,  1  Paige  1 1 J  :  Miller  v. 
Receivers,  Id.  444  ;  !{»•  Receivers,  Id,  oM').  ju  Aldrich  v. 
CamphcU,  4  (iray  2S4,  it  is  .said,  "This  case  is  not  to  l)e 
determined  upon  the  technical  rules  of  setH»tT,  hut  upon  the 
{trinciplcs  regulating  the  .settlement  of  insolvent  estates, 
whether  of  persons  living  or  decea.sed.  Tlie  settlements  with 
such  estates  are  tinal,  and  all  nuitual  demancLs  are  to  Ije 
balanced.  Claims  not  li«piidated,  and  dehts  absolutely  due, 
though  payable  in  the  future,  are  to  Ix?  included.  The  halance 
found  u[)on  such  adjustment  is  the  only  debt  remaining.  In 
the  case  of  an  insolvent  estate  of  one  deeea.sed  all  claims  exist- 
ing at  the  time  of  the  death  are  to  be  set  off;  in  the  ca.se  of  an 
insolvent  estate  of  a  person  living,  all  claims  existing  at  the 
time  of  the  first  publication  (»f  the  notice  of  the  issuing  of  the 
warrant."     See  Dcmmon  v.  Boylston  Bank.  •')  Cush.  104  ;    Bige- 


ROSE    V.    HART.  1591 

low  V.  Folger,  2  Met.  255 ;  Plielps  v.  Rice,  10  Id.  128  ;  Bemis 
V.  Smith,  10  Id.  194.  But  the  rules  relating  to  the  settlement 
of  insolvent  estates  of  persons  living  or  deceased,  or  to  actions 
brought  b}^  assignees  under  an  assignment  for  the  benefit  of 
creditors,  are  declared  to  have  no  application  to  the  claim  of  an 
assignee  of  a  chose  in  action ;  Smith  v.  Felton,  43  N.  Y.  419, 
422,  423 ;  Commonwealth  v.  Shoe  and  Leather  Ins.  Co.,  112 
Mass.  131 ;  Spaulding  v.  Backus,  122  Id.  553,  555.  It  has  been 
held  that  where  a  bank  has  a  lien  on  its  own  stock,  given  by 
usage  and  by-laws  of  directors,  for  advances  to  a  stockholder,  the 
assignees  in  insolvenc}^  of  the  latter  cannot  compel  the  transfer 
of  the  stock  without  paying  the  amount  due  to  the  bank ; 
Morgan  v.  Bank  of  North  America,  8  S.  &  R.  73,  88.  In 
Receivers  v.  Paterson  Gas  Light  Co.,  23  N.  J.  Law  283,  it  was 
held  that  a  debtor  of  an  insolvent  bank,  whether  his  indebted- 
ness has  accrued  or  not  at  the  time  of  the  insolvency,  may  set 
off  against  the  same  either  a  deposit  in  the  bank  or  the  bills 
thereof  received  by  him  in  good  faith  before  the  company's 
failure.  And  it  was  further  stated,  that  the  claim  against  the 
insolvent  corporation  did  not  constitute  a  legal  set-off  under 
the  statute  of  set-off,  as  against  the  receivers ;  but  that,  in  an 
action  at  law  by  the  receivers,  the  defendant  would  be  per- 
mitted, under  the  statute  to  prevent  frauds  by  incorporated 
companies,  to  avail  himself  of  the  defence.  This  case  contains 
extensive  references  to  the  jurisdiction  of  equity  over  set-offs 
in  cases  arising  under  bankrupt  and  insolvent  laws.  It  shows 
that  the  jurisdiction  was  exercised  by  the  courts  long  before 
the  introduction  of  the  provision  into  the  statutes.  After 
stating  that  the  fact  that  ''  all  well-considered  bankrupt  laws 
do  contain  so  broad  a  provision  in  favor  of  set-offs  is  in  itself 
the  strongest  authorit}'  in  support  of  the  natural  equity  and 
justice  of  the  provision."  It  is  said  that  "  the  general  right  of 
set-off  was  first  introduced  in  the  bankrupt  law  in  the  year 
1708,  by  the  statute  4  Anne,  cap.  17  ;  but  the  course  of  adjust- 
ing the  balance  was  adopted  in  practice  as  early  as  1675. 
Thus,  in  28  Car.  2  (1675),  Lord  North  said.  If  there  are 
accounts  between  two  merchants,  and  one  of  them  becomes 
bankrupt,  the  course  is  not  to  make  the  other  to  pay  the  whole 
that  was  originally  intrusted  to  him,  and  to  put  him,  for  the 
recovery  of  what  the  bankrupt  owes  him,  into  the  same  condi- 
tion with  the  rest  of  the  creditors,  but  to  make  him  pay  that 


1592  KosK  V.   ii.vi:t. 

only  which  appears  t»>  In-  diu-  i<>  tlie  hanknijtt  on   tin-  luoi  i>{ 
the  accdiuit.  Mod.  liir)." 

It  lias  already  been  stated  that  iiniiiaturfd  claims  cannot  l>e 
setotY;  and  it  is  said  that  no  claim  ori^^Muatin^' or  acijuired  after 
bankruptcy  or  the  death  of  an  insolvent  can  Ix.-  s«*t  ofT  against 
the  executors  or  jussignees  of  the  insolvent  or  the  assignees  of 
the  bankrupt  because  the  assets  are  tlicn  held  in  trust  for  all 
the  credit(us;  Northampton  Bank  r.  Halliet,  H  \V.  A:  S.  .'UT,  318  ; 
Irons  V.  Irons,  5  K.  I.  2»;4,  2»;7  ;  Clarke  i:  Hawkins,  Id.  219.  In 
Smith  r.  Hill,  H  (Jray  572,  previously  quote«l,  it  was  held  that 
a  debt  purchased  with  knowledge  of  the  (hd)tor's  insolvency, 
and  reason  to  Ixdieve  that  he  is  about  to  go  or  Ik«  driven  into 
insolvency,  and  notice  to  the  drbtor  of  the  purchase,  cannot  1)6 
set  off  in  an  action  by  tlu-  assignee  in  insolvency  upon  a  (hd»t 
<lue  from  the  piirchaser  to  the  thbtor.  The  cas»'  is  distinguished 
from  Aldrich  v.  CanjplR'll,  )*ii[>rii,  tlu*  court  saying  that  "to 
allow  this  set-off  wouhl  not  Ik*  consonant  with  e(|uity  or  justice 
to  the  parties  interested ;  would  directly  tend  to  defeat  an 
ecuiitable  distribution  of  the  jissets  among  the  creditors  gen- 
erally ;  an<l  wouhl  enable  a  debtor  of  an  insolvent  —  one  notori- 
ously so,  and  who  was  about  to  lH'c<)me  the  subject  of  proceedings 
in  insolvency  —  to  give  a  preferen<e  to  suih  cre<litoi-s  of  the 
insolvent  as  he  might  be  disposed  to  favor,  making  their  debt« 
availabh"  to  tlu*  whole  amount  due,  if  the  purchaser  pleased  to 
take  them  at  that  rate,  as  he  might  well  do  if  he  w;is  to  Ih? 
albtwt'd  their  full  amount  as  an  available  .set-off  against  his  own 
debt  to  the  insolvent ;  or,  what  would  Ik;  equally  objectionable, 
to  allow  the  debtors  of  the  insolvent  to  di.scliarge  their  liabilities 
by  a  set-off  accjuired  by  purchasing  the  depreciated  debts  of  the 
insolvent  at  a  large  discount  fnun  their  nominal  amount."  See 
Hichter  v.  Selin,  S  S.  *.S:  R.  425 :  Kinney  v.  Bennett,  27  Gratt. 
8«)5:  Smith  v.  Brinckerhoff,  8  Barb.  519;  Ogden  r.  Cowley,  2 
Johns.  JTI  :  MrClenahan  v.  Cotten,  83  N.  C.  332;  contra,  Mar- 
tin V.  Mohr,  i^*d  Ala.  221  ;  Mc(Jowan  v.  Budlong,  79  Penn.  St. 
470.  In  Ex  parte  Whiting,  2  Low.  472,  it  was  held  where  A. 
was  a  creditor  of  a  bankrupt  for  two  distinct  debts,  and  held 
shares  of  stock  in  pledge  for  one  of  them,  with  a  statutory 
power  of  sale  existing  at  the  date  of  bankruptcy,  that  he  could 
apply  the  surplus  proceetls  of  the  shares,  after  paying  the  first 
debt,  to  the  payment  of  the  second.  See  Ex  parte  Howard  Nat. 
Bank,  Id.  487.     By  U.  S.  Rev.  Sts.  §  5073.  provision  is  made  as 


ROSE    V.    HART.  1593 

to  set-off  in  case  of  mutual  credits,  but  debts  purchased  after 
the  filing  of  the  petition  in  bankruptcy  are  prohibited.  This 
section  was  enlarged  by  act  of  June  22,  1874,  c.  390,  §  6,  by 
providing  that  §  20  of  the  original  act,  now  §  5073  of  the  Rev. 
Sts.,  should  be  amended  by  adding  to  the  end  of  the  first  clause 
of  said  §  20  the  words  "  or  in  cases  of  compulsory  bankruptcy, 
after  the  act  of  bankruptcy  upon  or  in  respect  of  which  the 
adjudication  shall  be  made,  and  with  a  view  of  making  such 
set-off."  This  has  been  held  to  apply  only  to  cases  of  com- 
pulsory bankruptcy  ;  Lloyd  v.  Turner,  5  Saw.  463  ;  and  it  would 
seem  to  both  voluntary  and  involuntar}" ;  Hunt  v.  Holmes,  16 
Bank.  Reg.  101.  In  Williamson  v.  Gayle,  7  Graft.  152,  this 
equitable  principle  under  consideration  seems  to  have  been 
extended  to  a  case  of  foreign  attachment.  It  was  held  that  the 
home  defendant  having  property  of  the  absent  defendant,  for 
keeping  which  the  absent  defendant  Avas  indebted  to  him,  was 
entitled  to  his  claim  out  of  the  property  as  against  the  attaching 
creditor. 

Demands  by  executors  and  administrators.  —  An  executor  or 
administrator  cannot  set  off  a  debt  purchased  by  him  after  the 
death  of  the  testator  or  intestate,  against  a  demand  due  by  the 
estate  of  the  deceased  or  accruing  in  his  life-time ;  Dudley  v. 
Griswold,  2  Bradf.  (N.  Y.)  24.  If  he  uses  the  funds  to  buy  up 
debts  against  claimants  he  must  assume  the  risk  individually ; 
Mead  v.  Merritt,  2  Paige,  402.  A  defendant  cannot  set  off  a 
debt  due  to  him  as  administrator ;  Thomas  v.  Hopper,  5  Ala. 
442.  Otherwise  when  he  has  been  charged  with  it  on  final 
settlement  in  the  probate  court  before  issue  of  writ ;  White  v. 
Word,  22  Id.  442.  A  debt  due  to  an  administrator  personally 
cannot  be  set  off  against  the  share  of  a  distributee  of  the  estate  ; 
Bradshaw's  App.,  3  Grant's  (Penn.)  Cas.  109 ;  Richbourg  v. 
Richbourg,  1  Harp.  (S.  C.)  Ch.  168.  An  executrix  cannot 
set  off  damages  for  harassment  and  attorney's  fees  paid  against 
a  claim  prosecuted  against  the  estate ;  House  v.  Collins,  42 
Tex.  487.  In  an  action  against  an  administrator  for  a  debt  of 
his  intestate  the  defendant  cannot  set  off  a  sum  due  on  a  note 
of  the  plaintiff  to  him  as  administrator  for  his  intestate's  goods 
sold  by  him  as  such  administrator ;  Smith  v.  Edwards,  1  Houst. 
(Del.)  427.  For  a  set-off  that  was  allowed  under  the  New 
York  code,  see  Lerche  v.  Brasher,  37  Hun  385.  In  many  cases 
against    executors    and    administrators    the    latter   have    been 


1594  KOSK    V.    IIAUT. 

iillovved  to  set  off  (lemaiuls  lieltl  by  them  uj^uiiist  the  pluintiffH 
where  there  was  iniitiiiility,  and  the  eases  weie  brought  within 
the  re((>i,fiii/A'(l  priiiciides  of  the  subject.  St-t*  IV'rcy  v.  Chiry, 
32  iM(l.  lM;")  ;  rciuson  v.  Darrington,  32  Ahi.  227 ;  Burke  v. 
Stilhvell,  23  Ark.  21*4;  Wilson  v.  Kdmonds,  24  N.  II.  517; 
Cialloiiey's  App.,  0  IViin.  St.  37;  Strong  r.  Bass,  35  M.  333. 
See,  also,  Boyd  r.  Townes,  7'.>  \'a.  \\H\  Titus  v.  Iloagland,  39 
N.  J.  E(j.  294.  It  is  a  general  ride  that  a  legatee  owing  the  tes- 
tator is  entitled  to  only  the  excess  of  the  legacy  over  his  debt; 
Armour  v.  Kcmlall,  15  \i.  I.  19:5.  Sec  Ilowze  v.  Davis,  70  Ala. 
381. 

Demands  against  executors  and  administratora.  —  If  an  executor 
or  adniinistrutoi-  brings  suit  upon  a  tlcbt  created  against  the  de- 
fendant, (U-  upon  wliith  the  cause  of  action  arose  after  the  testator 
or  intestate's  death,  it  is  a  general  rule  that  tiie  defendant  cannot 
set  off  a  debt  existing  and  suable  against  the  testator  or  intes- 
tate in  his  life-time  :  iJoot  r.  Taylor,  20  .Johns.  137;  Dale  v. 
Cooke,  4  .b»lins.  (  li.  l:').  See  Shaw  r.  (Jookin,  7  N.  II.  10; 
Cook  i\  Lovell,  11  Iowa  Sl  ;  \Volfersi)erger  r.  Bueher,  lO  S.  &  K. 
10;  Jordan  v.  Nat.  Shoe  Bank,  12  Ilun  ( N.  V.)  512;  Patterson 
V.  Patterson,  59  X.  Y.  574  ;  Biz/ell  r.  Stone,  12  Ark.  37H  ;  Ilarte 
V.  Ilouchin,  50  Ind.  327  ;  DayhutY  /•.  Day  huff,  27  Id.  15M  ;  Wake- 
man  V.  Everett,  41  Hun  278.  See,  also.  Steel  v.  Steel,  12  Penn. 
St.  64;  McDonald  v.  Black,  20  Ohio  185;  McLaughlin  v.  Win- 
ner, 03  Wis.  120;  Stuart  v.  Commonwealth,  8  Watts  (Penn.) 
74.  A  claim  due  fiom  an  executor  in  his  imlividual  capacity 
cannot  be  set  off  against  a  deman<l  due  the  testator;  Wisdom  v. 
Becker,  52  111.  ;i42.  Sec  Harris  v.  Taylor,  53  Conn.  500.  See 
Westfall  r.  Diingan,  14  Ohio  St.  270.  It  has  In-en  held  in  a 
suit  by  an  administrator  for  a  debt  due  deceased,  the  defendant 
may  set  off  a  debt  »lue  him  by  the  firm  of  which  deceased  was 
a  member;  Blair  c.  Wood,  108  Pemi.  St.  278.  Where  suit  is 
brought  by  executors  against  a  legatee  for  money  due  he  can- 
not plead  the  amount  of  his  legacy  as  a  set-off  unless  lie  shows 
the  estate  solvent  and  ready  to  be  distributed  ;  Dobbs  v.  Prothro, 
55  Ga.  72.  See  Guthrie  v.  Guthrie,  17  Tex.  541.  Many  c;ises 
turn  upon  the  strict  meaning  of  the  code  or  statutes  allowing  or 
forbidding  a  set-off  against  an  executor  or  administrator  ;  Turner 
V.  Tapscott,  30  Ark.  312;  Tyler  v.  Boyce,  135  Mass.  558;  Mar- 
tin V.  White,  58  Vt.  398;  Russell  v.  Hubbard,  70  Ga.  618;  Carr 


KOSE   V.    HART.  1695 

V.  Askew,  94  N.  C.  194 ;  Sclierer  v.  Ingerman,  110  Ind.  428 ; 
Rogers  v.  Murdock,  45  Hun  30. 

Mortgagor  and  mortgagee.  —  "  The  proceedings  to  foreclose  a 
mortgage  are  in  rem,  and  not  against  the  person  of  the  debtor. 
The  principles  of  set-off  do  not  apply."  Where  the  holder  of  a 
mortgage  died,  naming  the  mortgagor  his  executor,  and  on  a 
settlement  of  the  executor's  account  a  balance  was  due  him 
from  the  estate,  it  was  held  that  such  balance  could  not  be  set 
off  in  a  suit  to  foreclose  against  the  amount  due  thereon ;  Dol- 
man V.  Cook,  14  N.  J.  Eq.  56 ;  Bird  v.  Davis,  Id.  467.  In  a 
suit  to  foreclose,  the  defendant  cannot  set  off  against  the  mort- 
gage debt  unliquidated  damages  for  breach  of  an  agreement, 
foreign  to  the  mortgage  debt,  on  the  ground  that  the  plaintiff 
had  parted  with  some  of  his  property  and  had  threatened  to 
put  the  residue  beyond  defendant's  reach ;  Jennings  v.  Web- 
ster, 8  Paige  503.  But  see  Rawson  v.  Copland,  2  Sandf.  Ch. 
251 ;  s.  c.  3  Barb.  Ch.  166.  Damages  for  the  breach  of  a  sub- 
sequently made  contract  cannot  be  set  off  against  the  amount 
due  upon  a  mortgage ;  Long  v.  Long,  14  N.  J.  Eq.  462.  A 
lessee,  who  is  mortgagee,  cannot  in  a  suit  for  rent  set  off  the 
mortgage  interest ;  Scott  v.  Fritz,  51  Penn.  St.  418.  Where 
one  gives  his  note,  secured  by  mortgage,  for  property  sold  to 
him  and  warranted  as  to  quality,  and  when  the  note  matures, 
others,  to  prevent  foreclosure,  take  the  note  up  and  give  their 
own  in  lieu,  they  cannot,  in  a  suit  against  them,  set  off  dam- 
ages to  the  maker  of  the  first  note,  occasioned  by  a  breach  of 
the  warranty  ;  Zuckermann  v.  Solomon,  73  111.  130.  See  Timms 
V.  Shannon,  19  Md.  296.  Where  the  mortgagee  of  j^ei'sonal 
property  brings  action  to  foreclose,  and  recovers  a  judgment, 
subsequent  purchasers  of  the  goods  cannot  set  up  a  demand  in 
favor  of  the  mortgagor  against  the  mortgagee ;  Beers  v.  Water- 
bury,  8  Bosw.  (N.  Y.)  396.  When  the  mortgagee  brings  a  bill 
to  foreclose,  the  mortgagor  may  set  up  any  defence  other  than 
the  statute  of  limitations,  available  in  an  action  at  law  on  the 
debt.  But  when  he  resorts  to  equity  to  obtain  the  benefit  of  a 
set-off  he  must  show  some  other  ground  of  equity  than  a  mere 
legal  demand,  which  may  be  set  off  under  the  statute ;  Knight 
V.  Deane,  77  Ala.  371.  For  a  case  where  the  plaintiff  had  the 
equitable  right,  when,  or  before,  the  mortgage  note  matured,  to 
surrender  to  the  mortgagee,  the  defendant,  his  notes  held  by 
her,  and  to  have  the  money  due  upon  them  credited  upon  the 


l,')\H]  linSK    V.    IIAKT. 

note  he  held  against  lier.  Sec  Harrison  r,  liray,  92  N.  C.  488. 
See,  also,  Byerly  i'.  Iliimijlirey,  9o  N.  C.  151.  In  case  of  fore- 
closure the  statutes  ot"  some  states  confer  lilxjral  rij^litn  of  set- 
off; Fvowry  r.  Kurd,  7  .Minn.  'MAt;  Allen  v.  Maddox,  40  lowii 
1-4.  Ill  an  action  by  an  a-ssij^nee  to  foreclose  a  niortgaj^e,  iw- 
sioiu'd  to  liini  as  collateral  for  a  lander  deht,  to  wiiith  the 
niortt^nigee  is  not  made  a  party,  the  njorti,Mi,'or  taiuiot  set  off 
the  amount  of  a  note  a<jfainst  the  niorti,Mt,'ee  purchased  hy  liini 
after  the  transfer  of  tlie  iiii>rti,Mi;t' ;  lUakely  r.  Twining,  ♦)!) 
Wis.  2^>H. 

Claims  by  or  against  banks.  —  "Tlie  general  rule  is  that  a  hank 
has  a  rigiit  of  set-off  as  against  a  (K-posit,  only  when  tlu'  indi- 
vidual who  is  hoth  depositor  and  dehtor  stands,  in  hoth  these 
characters  alike,  in  i)reeisely  the  same  relation,  and  on  pretti.scly 
the  same  footing  towards  the  hank,  and  hence  an  individual 
deposit  cannot  he  set  off  against  a  partnership  deht;"  Interna- 
tional Bank  r.  .loues,  119  III.  4oT.  41<».  Hills  of  a  l)ank  accpiired 
after  its  insolvency  cannot  l)e  set  off  against  «lel»ts  due  it  at  the 
time  of  insolvency ;  Diven /'.  l*helj>s,  .'U  Harh.  2-4;  ICxeliange  Bank 
V.  Knox,  19  (iratt.  7:59;  (Jee  v.  Bacon,  I»  Ala.  ♦;99.  See  Clarke 
('.  Hawkins,  ."»  U.  I.  ■_']'.•.  it  is  immaterial  if  a  pait  of  the  hills 
were  held  l>y  the  defendant  when  tlie  hank  failed  an<l  tlie  <leht 
niaturcil ;  I'^astern  Bank  r.  ("apron,  -2  Conn.  «»;{9.  Stock  in  a 
bank  is  nt)t  a  set-oft' against  a  m»te  given  to  it;  Whittington  v. 
Farmer's  Bank,  '>  Har.  cV  .1.  4S1>.  The  notes  of  a  state  Iwink, 
after  it  has  organized  as  a  natiomd  hank,  cannot  l>e  set  off 
against  a  judgment  recovered  hy  the  latter;  Thorpe  r.  Wege- 
farth,  .")•»  I'cnn.  St.  82.  I)ei>osits  made  with  hankers  after  witli- 
drawal  of  a  partner,  hy  the  maker  of  a  note  to  them  l)efore  with- 
drawal, cannot  he  set  off  against  the  note;  Dawson  v.  Wils«)n, 
55  Ind.  21tt.  For  a  case  where  it  was  held  that  a  divi«lend  that 
would  be  coming  to  one  as  stockholder  U[)on  winding  up,  was 
not  available  as  a  set-off,  see  Iluckersville  Bank  v.  Hemphill, 
7  Ga.  396.  For  a  case  where  it  was  held  that  there  were  no 
mutual  creditors,  see  Stetson  v.  Exchange  Bank,  7  (iray  425. 
See  further  on  this  subject,  Bank  v.  Macalester,  9  Penn.  St. 
475 ;  Andrews  v.  Artisans'  Bank,  26  N.  Y.  298 ;  Re  Van  Allen, 
37  Barb.  225 ;  American  Bank  v.  Wall,  56  Me.  167  ;  Colt  v. 
Brown,  12  Gray  233. 

Public  officers  and  the  government.  —  Generally,  set-off  is  not 
allowed  in  cases  of  demands  by  or  against  public  officers;  Rus- 


ROSE   V.    HART.  1597 

sell  V.  First  Presbyterian  Church,  65  Peun.  St.  9  ;  Wilson  v. 
Lewistown,  1  Watts  &  Serg.  428 ;  Harper  v.  Howard,  3  Ala.  284. 
See  United  States  v.  Ringgold,  8  Pet.  150.  It  cannot  be  applied 
to  the  salary  of  the  Attorney-General,  80  Va.  485.  See  Water- 
bury  V.  Lawlor,  51  Conn.  171. 

The  state  being  sovereign  can  be  sued  only  by  its  own  con- 
sent, hence,  in  actions  by  the  state,  the  right  of  set-off  does  not 
exist,  unless  given  by  statute ;  White  v.  Governor,  18  Ala. 
767 ;  Chevallier  v.  State,  10  Tex.  315.  A  tax  not  being  a  debt 
is  not  liable  to  a  set-off ;  Gatling  v.  Commissioners,  92  N.  C. 
536.  See  Newport  Bridge  Co.  v.  Douglass,  12  Bush  (Ky.) 
673 ;  Cobb  V.  Elizabeth  City,  75  No.  Car.  1  ;  Finnegan  v.  City 
of  Fernandina,  15  Fla,  379  ;  City  of  New  Orleans  v.  David- 
son, 30  La.  Ann.  541,  554  ;  Hibbard  v.  Clark,  56  N.  H.  155. 
Where  the  Commonwealth  undertakes  to  litigate  wdth  a  citizen 
or  corporation,  the  latter  may,  by  set-off  or  counter-claim,  defeat 
the  recovery  of  the  state,  but,  in  the  absence  of  some  sj)ecial 
legislative  authority,  the  defendant  cannot  have  judgment  over 
against  the  Commonwealth ;  Commonwealth  v.  Owensboro  R. 
R.  Co.,  81  Ken.  572.  The  law  of  set-off  in  case  of  United 
States  government  will  be  found  at  the  conclusion  of  the 
notes  on  "counter-claim." 

Various  points.  —  The  following  points  are  of  a  general 
nature,  and  are  nearly  all  taken  from  late  cases.  Instead  of 
pleading  a  set-off  or  counter-claim,  a  defendant  may  make  it 
the  subject  of  an  independent  action ;  Blackwell  Co.  v. 
McElwee,  94  N.  C.  425.  Generally  the  plaintiff  cannot  dis- 
continue or  be  non-suited;  Holcomb  v.  Holcomb,  23  Fed.  Rep. 
781;  Whedbee  v.  Leggett,  92  N.  C.  469;  O'Malley  v.  Judy, 
16  Mo.  Api^.  553.  A  set-off  may  be  pleaded  as  a  defence  to  an 
action  brought  in  the  United  States  courts  in  any  state  where 
that  plea  is  permissible  by  the  laws  of  the  state ;  Frick  v. 
Clements,  31  Fed.  Rep.  542 ;  Partridge  v.  Ins.  Co.,  15  Wall. 
573.  For  cases  where  the  risrht  of  set-off  was  held  to  be 
superior  to  an  attorney's  lien,  or  to  the  rights  under  an  assign- 
ment of  an  overdue  debt ;  Fairbanks  v.  Devereaux,  58  Vt.  359 ; 
McDonald  v.  Smith,  57  Id.  502.  Where  the  amount  claimed  by 
way  of  set-off  exceeds  the  jurisdiction  of  the  state  court  from 
which  the  cause  is  removed  to  the  United  States  court,  the 
United  States  court  has  no  jurisdiction  ;  Hummel  v.  Moore,  25 
Fed.  Rep.  380.     As  to  abatement  by  death  under  a  statute,  see 


1'>\)H  ROSE    V.    HART. 

FiiiniU  r.  Shell,  ♦)!)  Wis.  "jt;].  If  ;i  co-plaintiff  is  julmittetl  hy 
uiiU'iidmL'iit,  in  lhsc  ot"  a  verdict  aj^ainst  tlnni.  the  recovery 
upon  the  countcr-claini  will  he  at^'ainst  hoth  ;  Mack  r.  Slotcniaii, 
21  Fed.  Itcp.  1<>!>.  When  payment  and  .set-otY  are  pleade<l  the 
hurdiMi  of  proof  is  on  tiu-  defendant;  liri^diani  r.  Carli.sle,  7H 
Alii.  24;l  See  Phillips  r.  Railroad  (  o.,  lUT  I'enn.  St.  472  ;  Smith 
V.  .M.;(Jn'iror,  00  X.  ('.  101  ;  Kllis  v.  Cothran,  117  III.  4.'>S.  .\.s 
to  (picstiniis  of  /vx  iiilJuiUntta,  Krapp  v.  Kldridjj^e,  33  Kan.  li>»I; 
Hank  ik  Ketchum,  tJO  Wis.  4:is.  A  stockholder  who  is  a 
creditor  of  the  corporation  cannot  olYset  his  unpaid  sulxscri|>- 
tiou  as  against  the  general  indehtedness  (»f  the  corporation; 
Thompson  v.  Lake,  10  Nev.  103.  I5nt  in  a  proceeding  under 
the  statute,  against  a  holder  of  unpaid  shares  hy  a  creditor  of 
the  corporation,  the  shaiclnthler  may  offset  a  matured  indehted- 
ness of  the  corporation  to  him:  Wei)lH;r  v.  Leighton,  H  Mo. 
App.  ")02.  It  has  heen  held  that  a  hank  cannot  set  i»ff  the 
amount  due  upon  a  promi.ssory  note  against  a  certitieate  of 
deposit;  Shutt;  v.  Pacific  Nat.  Bank,  13»J  Msiss.  487.  \\u\ 
inti-rest  received  hy  a  national  hank  upon  a  note,  greater  than 
the  rate  alloweil  by  the  Ktato  law  whert^  the  note  wsus  made,  in 
violation  of  U.  S.  Kev.  Sts.  i^  0107,  cannot  Ikj  .set  off  in  an 
action  hy  the  hank  iipon  the  note  against  tin*  amount  due 
thereon;  First  Nat.  Hank  r.  Childs,  133  Mass.  24S:  130  Id.  .■)10. 
Statnte  of  Limitations  is  not  a  defence  to  set  off  if  cross  demand 
was  a  legal  subsisting  claim  when  plaintiff's  right  of  action 
accrued;  Patrick  v.  Petty,  M3  ^Vla.  420.  ( )ne  having  a  note  and 
account  against  another  may  sue  upon  the  not*-  and  re[)ly  the 
account  iis  a  set-off  against  an  e([ual  ainonnt  pleaded  as  a  set-off 
by  the  defendant;   lUount  v.  Kick,  1<»7  Ind.  238. 

Judgments.  —  "While  there  is  no  ex[)ress  statute  authority  for 
setting  oft  judgments  where  the  creditor  in  one  action  is  the 
debtor  in  another,  except  in  a  limited  number  of  cases"  given 
by  statute,  "'yet  this  power  has  Ix^en  frequently  exercised  by 
courts  of  law,  and  rests  upon  their  jurisdiction  over  suitoi-s  in 
them  and  their  general  superintendence  of  proceedings  before 
them;"  Ames  v.  Bates,  110  Mass.  307;  Hadlam  v.  Springsteen, 
41  Ilun  lt>0 ;  Sneed  v.  Sneed,  14  Tenn.  13  ;  Frazicr  v.  IIen(ben, 
80  Va.  265 ;  Hosworth  v.  Tallman,  66  Wis.  533.  And  it  is  said 
that  the  "  practice  of  setting  off  one  judgment  against  another, 
betAveen  the  same  parties,  and  due  in  the  same  rights,  is 
ancient  and  well  established;"  Holmes  v.  Robinson,  4  Ohio  90; 


ROSE   V.    HART.  1599 

Temple  v.  Scott,  3  Minn.  419.  In  the  absence  of  statute,  the 
direction  of  the  court  controls.  "  A  court  can  only  order  one 
judgment  to  be  set  off  against  another  when  equity  and  good 
conscience  require  that  such  a  set-off  shall  be  made;"  Beard  v. 
Puett,  105  Ind.  68,  70.  See  Junker  v.  Hustes,  113  Id.  524; 
Butner  v.  Bowser,  104  Id.  255  ;  Chipman  v.  Fowle,  130  Mass. 
352  ;  Herman  v.  Miller,  17  Kans.  328.  A  debt  not  in  judgment 
cannot  be  set  off  against  a  judgment ;  Thorpe  v.  Wegefarth,  56 
Penn.  St.  82.  See  Zogbaum  v.  Parker,  55  N.  Y.  120  ;  Duff  v. 
Wells,  7  Heisk.  17. 

It  has  been  held  that  the  court  will  set  off  judgments  of  the 
same  or  of  different  courts ;  Hill  v.  Brinkley,  10  Ind.  102 ; 
Brooks  V.  Harris,  41  Id.  390.  But  they  must  be  mutual ;  Rix 
V.  Nevins,  26  Vt.  384.  See  Ledyard  v.  Phillips,  58  Mich.  204. 
Upon  judgment,  all  the  original  peculiar  features  of  a  claim  are 
lost  sight  of,  and  the  demand  ranks  equally  among  all  other 
judgments  ;  Temple  v.  Scott,  supra.  The  subject  of  assign- 
ment presents  many  interesting  points:  "It  is  not  just  that  one 
should  be  encouraged  instead  of  his  paying  his  own  deljt  to  seek 
out  claims  against  his  creditor,  in  order  thus  to  change  the  posi- 
tion of  parties  jt?ewcZe/i^e  lite^  and  this  reason  is  equally  applicable 
to  judgments  which  may  afterwards  be  obtained  upon  such 
claims;"  Ames  v.  Bates,  119  Mass.  397,  399.  See  Desearn  v. 
Babers,  62  Miss.  421.  Often  where  the  equitable  rights  of  third 
parties  would  be  aff'ected  by  an  off-set,  it  is  not  to  be  made  to 
the  injury  of  intervening  rights  honestly  acquired  ;  Id.  399  ; 
Zogbaum  v.  Parker,  55  N.  X.  120  ;  Gay  v.  Gay,  10  Paige  369. 
See  Perry  v.  Chester,  53  N.  Y.  240 ;  Wright  v.  Treadwell,  14 
Tex.  255.  The  set-off  of  mutual  judgments  before  the  issue  of 
executions  is  an  equitable  power  incidental  to  the  jurisdiction  of 
courts  over  their  suitors  and  officers,  and  is  independent  of  any 
statute  of  set-off;  Chase  v.  Woodward,  61  N.  H.  79.  Although 
if  there  has  been  an  assignment  to  a  third  person  before  appli- 
cation for  a  set-off  is  made,  such  third  person  is  the  real  party 
in  interest,  and  no  set-off  can  ordinarily  be  allowed.  See  Hovey 
V.  Morrill,  Id.  9,  13 ;  Goodwin  v.  Richardson,  44  Id.  125.  But 
see  Mason  v.  Knowlson.  1  Hill  218 ;  Turner  v.  Satterlee,  7 
Cow.  480  ;  Ault  v.  Zehering,  38  Ind.  429.  A  party  may  be 
subrogated  to  the  rights  of  another,  so  as  to  be  entitled  to  off- 
set a  judgment  against  one  held  against  him.  Gillette  v.  Hill, 
102  Ind.  531.     A  judgment  against  A.  and  B.  in  their  individual 


IGOO  ROSE   V.    lIAltT. 

capacities,  caniiDt  he  set  otl  aj^ainst  them  :i>  .uliiiiiii-^t i  iturs; 
McC'hesney  v.  Koj^ers,  8  N.  J.  Law  272. 

Statutes  do  not  always  reciuiie  the  mutual  lUlii.^  i«i  \ni  thie  to 
and  from  tlie  same  number  of  persons.  See  Hallinger  v.  Tar- 
bell,  1<>  Iowa  4'.>1  ;  Spurr  v.  Snyder,  JJ.')  Conn.  172.  Hut  it  is 
hild  in  Alabama  that  at  law,  a  judjjment  apiinst  one  |mrtner 
individually  cannot  be  set  otT,  in  whole  or  in  part,  against  a 
judgment  in  favor  of  the  partnership  ;  and  in  ccjuity,  «)ne  judg- 
ment cannot  1)6  set  off  against  the  olht-r  to  the  extent  of  the 
individual  partner's  interest  in  the  ju<li,Mnrnt,  in  favor  of  the 
partnership,  on  the  ground  of  his  insolvency  ;  W.itts  ;•.  Sayn', 
76  Ala.  397.     See  Corwin  r.  Ward,  3.')  Cal.  1  !>;'». 

In  order  to  justify  an  othcer  in  refusing  to  nisike  the  set-ofl  of 
executions  of  the  res{)ective  parties  in  his  hands,  it  must  appear 
by  his  return,  or  otherwise,  that  the  execution  tii-st  deliverctl 
to  him  was  assigned  before  the  creditor  in  the  second 
became  entitled  to  the  sum  due  thrn'on.  See  Diinklee  v.  Locke, 
13  Mass.  .")2') ;  I'rimm  /•.  Ransom.  !<•  .Mo.  444  ;  Lrathcrs  c.  (^irr, 
•J4  Mf.  351  ;  New  Haven  Copper  Co.  v.  Brown,  4«;  Id.  4lH.  In 
New  Jersey,  the  court  has  a  broad  eipiitable  jurisdiction  in 
ordering  one  judgment  to  be  set  <»1T  against  another.  It  was 
held  that  a  decree  in  admiralty  for  a  libellant,  on  a  liUd  for 
damages  in  a  federal  court,  may  be  set  oft'  against  a  judgment 
recovered  in  the  supreme  court  against  the  libellant,  the  parties 
in  the  suits  being  the  same  ;  Schautz  v.  Kearney,  47  N.  J.  Law 
56.     See  Blackburn  v.  Kcilly,  48  Id.  82. 

Where  a  federal  court  of  ecpiity  is  asked  to  set  aside  the  sat- 
isfaction of  a  state'  judgment  at  law  or  to  determine  eciuitable 
defences  to  that  judgment,  as  preliminary  to  a  decree  of  set-off 
against  a  judgmetit  of  the  federal  court  itself,  the  parties  will 
be  sent  to  a  competent  state  court  to  settle  the  controversy, 
the  federal  judgment  being  stayed  ;  Lauderdale  Co.  v.  Foster, 
23  Fed.  Rep.  ;",!(;. 

Counter-claim.  —  A  counter-claim  is  the  creature  of  statute 
or  code.  The  term  varies  in  meaning,  but  the  general  features 
of  the  counter-claim  are  the  same  in  all  states  which  have 
adopted  it.  It  usually  embraces  both  recoupment  and  set-off,  and 
secures  to  a  defendant  all  the  relief  given  at  law,  or  in  equity,  or 
by  cross-suit,  and  includes  liquidated  or  unliquidated  damages ; 
Clinton  V.  Eddy,  1  Lans.  (N.  Y.)  61 ;  s.  c.  54  Barb.  54 :  Boston 
MiUs  V.  EuU,  6  Abb.  (N.  S.)  319 :  Waddell  v.  Darling,  51  N.  Y. 


ROSE   V.    HART.  1601 

327  ;  Jarvis  v.  Peck,  19  Wis.  74 ;  Dietricli  v.  Koch,  35  Wis.  618  ; 
Hay  V.  Short,  49  Mo.  139 ;  Belleau  v.  Thompson,  33  Cal.  495 ; 
Wiswell  V.  First  Cong.  Church,  14  Ohio  St.  31 ;  Slone  v.  Slone, 
2  Met.  (Ky.)  339 ;  Campbell  v.  Routt,  42  Inch  410 ;  Wilson  v. 
Hughes,  94  N.  C.  182 ;  Hurst  v.  Everett,  91  N.  C.  399;  Parsons 
V.  Sutton,  m  N.  Y.  92 ;  Grange  v.  Gilbert,  44  Hun  9.  In  other 
states,  it  is  employed  for  a  similar  purpose ;  Russell  v.  Miller, 
54  Penn.  St,  154;  Griffin  v.  Jorgenson,  22  Minn.  92;  Bloom  v. 
Lehman,  27  Ark.  489.  It  must  have  existed  for  the  defendant 
against  the  plaintiff  at  the  beginning  of  the  action ;  Orton  v. 
Noonan,  29  Wis.  541 ;  Rickard  v.  Kohl,  22  Id.  506.  In  some 
states  the  provisions  are  so  broad  as  to  allow  in  an  action  on 
contract  any  other  cause  of  action  or  contract,  existing  at  the 
beginning  of  the  suit,  to  be  set  off  as  a  counter-claim ;  Wheelock 
V.  Pacific  Gas  Co.,  51  Cal.  223 ;  Griffin  v.  Moore,  52  Ind.  295 ; 
Empire  Co.  v.  Boggiano,  52  Mo.  294 ;  Home  v.  Hoyle,  28  Fed. 
Rep.  743 ;  Church  v.  Speigelburg,  31  Id.  601.  See  Green  v. 
Willard  Co.,  1  Mo.  App.  202.  In  other  states  any  claim  spring- 
ing from  the  transaction  named  in  the  complaint  may  be  set  up 
as  a  counter-claim,  whether  in  test  or  contract ;  Bitting  v.  Thax- 
ton,  72  N.  C.  541.  See  Eversole  v.  Moore,  3  Bush.  49 ;  Norden 
V.  Jones,  33  Wis.  600 ;  Hunt  v.  Chapman,  51  N.  Y.  555  ;  Allen 
V.  Maddox,  40  Iowa  124  ;  Grange  v.  Gilbert,  44  Hun  9 ;  Met. 
Trust  Co.  V.  Tonawanda,  43  Id.  521.  In  an  action  for  rent  the 
lessee  may  set  up,  as  a  counter-claim,  damages  from  breaches  of 
covenant  in  the  lease ;  Cook  v.  Soule,  56  N.  Y.  420.  See  Mor- 
gan V.  Smith,  70  Id.  537 ;  Orton  v.  Noonan,  30  Wis.  611 ;  Hay 
V.  Short,  49  Mo.  139.  But  not  wrongful  acts,  independent  of 
his  obligation  under  the  contract ;  Edgerton  v.  Page,  20  N.  Y. 
281.  Great  latitude  is  allowed  where  the  course  of  action  set 
up  as  a  counter-claim  is  connected  with  the  subject  of  the  ac- 
tion set  forth  in  the  complaint;  Glen  Manf.  Co.  v.  Hall,  61 
N.  Y.  226.  See  Stoddard  v.  Tread  well,  26  Cal.  294 ;  Kisler  v. 
Tinder,  29  Ind.  270 ;  Starbird  v.  Barrons,  43  N.  Y.  200  ;  Isham 
V.  Davidson,  52  Id.  237 ;  McDougall  v.  Walling,  48  Barb.  364 ; 
Curtis  V.  Barnes,  30  Barb.  225;  Hicksville  R.  R.  Co.  v.  Long 
Island  R.  R.  Co.,  48  Id.  355 ;  Woodruff  v.  Garner,  27  Ind.  4. 
It  is  held  in  Oregon  that  in  an  action  upon  a  contract  for 
money  expended  by  a  tenant  in  repairing  a  hotel,  the  owner 
may  show  that  the  building  was  burned  by  the  tenant's  care- 
lessness ;  Zigler  v.  McClellan,  15  Or.  499.     In  a  late  case  in 


1602  ROSE  V.    HART. 

California  it  is  said  that  in  an  action  on  contract  the  defendant 
may  set  up  as  counter-chiini  a  cause  of  action  in  his  favor 
against  tlie  plaintiff  for  a  balance  on  an  open,  mutual,  and 
current  account,  although  a  prior  ai;tion  by  him  against  the 
plaintiff  on  certain  items  of  the  account  is  still  pending.  The 
defendant  need  not  dismiss  the  prior  action,  or  elect  between  it 
and  the  counter-claini ;  Lindsay  v.  Stewart,  72  Cal.  540.  See 
Inslee  v.  Hampton,  8  Hun  230 ;  Gillespie  v.  Torrance,  25  N.  Y. 
306,  308 ;  Lowry  v.  Hurd,  7  .Minn.  356,  363. 

It  is  a  general  rule,  as  in  set-off,  that  the  demand  must  be 
against  the  plaintiff  in  the  caj^acity  in  which  he  sues,  and  some 
of  the  codes  require  that  the  demand  must  exist  in  favor  of 
the  defendant,  and  against  a  plaintiff  between  whom  a  several 
judgment  might  be  had  in  the  action.  See  Patterson  v.  Patter- 
son, 59  N.  Y.  574;  McConihe  v.  Hollister,  19  Wis.  269  :  Linn  v. 
Rugg,  19  Minn.  181  ;  Thompson  v.  Sickles,  46  L;irb.  4i»:  Home 
V.  Hoyle,  28  VM.  Rep.  743;  Paine  v.  Hunt,  40  H;ub.  75;  Hill 
V.  Golden,  16  U.  ^b>n.  551;  Pendcrgast  r.  Greeniield,  4(»  Hiin 
494;  Rcsch  V.  Senn,  31  Wis.  I.'.S;  Hiiin  r.  Newton,  30  id. 
640;  Quinn  v.  Smith,  49  Cal.  163;  Burrage  v.  Bonanza  (iohl 
Mining  Co.,  12  Or.  169.  But  where  one  indebted  to  an  estate 
in  the  hands  of  receiver,  executor,  or  trustee,  is  employed  to 
render  services  beneficial  to  the  estate,  the  value  thereof  is  a 
proper  counter-claim  in  an  action  to  i-ecover  the  debt ;  Davis  v. 
Stover,  58  N.  Y.  473. 

It  has  been  held  that  usury  cannot  be  set  up  as  :i  counter- 
claim; Prouty  V.  Eaton,  41  Barl).  409.  See  Geenia  r.  Keah,  ^)6 
Id.  245,  249;  McDonald  v.  Smith,  57  Vt.  502.  If  that  which 
is  set  up  as  a  counter-claim  on  a  contract,  independent  of  the 
contract  declared  U[)on,  although  closely  connected  therewith, 
it  is  not  available  ;  Loomis  v.  Eagle  Bank,  10  Ohio  St.  327 ; 
Newkirk  v.  Neild,  19  Ind.  194.  It  has  been  held  that  an  equi- 
table defence,  admissible  in  a  state  court,  cannot  be  interposed 
to  an  action  at  law  in  an  action  at  law  in  the  United  States 
Courts ;  Church  v.  Spiegelburg,  31  Fed.  Rep.  601.  For  cases 
where  it  was  held  that  a  counter-claim  was  not  admissible,  but 
that  the  remedy  should  be  against  executors  or  administrators 
personally,  see  Gelshenen  v.  Harris,  26  Fed.  Rep.  680 ;  West- 
fall  V.  Dungan,  14  Ohio  St.  276.  The  late  cases  enforce  the 
rule  referred  to,  that  which  is  offered  as  a  counter-claim  must 
have  existed  at  the  commencement  of  the  suit;  Mayo  v.  Davidge, 


ROSE   V.    HART.  1603 

44  Hun  342.  See  Drexler  v.  Smith,  30  Feci.  Rep.  754.  In 
Texas  if  the  suit  is  founded  on  a  certain  demand,  the  defendant 
cannot  set  off  unliquidated  damages  founded  on  the  plaintiff's 
tort  or  breach  of  contract;  Riddle  v.  McKinney,  67  Tex.  29.  In 
Wisconsin,  in  an  action  for  trespass  upon  land,  a  counter-claim 
for  taxes  is  not  available  paid  by  defendent  while  in  possession, 
believing  that  he  was  owner ;  Davidson  v.  Rountree,  69  Wis.  655. 

It  is  a  general  rule  that  a  counter-claim  must  be  set  up  in 
the  j^leadings ;  Bates  v.  Rosekrans,  37  N.  Y.  409  ;  Steinhart  v. 
Pitcher,  20  Minn.  102 ;  Wythe  v.  Myers,  3  Saw.  595 ;  Stov/ell 
V.  Eldred,  39  Wis.  614 ;  Quinn  v.  Smith,  49  Cal.  163.  But  see 
Gilpin  V.  Wilson,  53  Ind.  443 ;  McMannus  v.  Smith,  Id.  211. 
For  a  case  which  held  that  the  answer  did  not  make  out  a 
counter-claim  within  the  code,  but  a  set-off,  see  Delahaye  v. 
Heitkemper,  16  Neb.  475,  480.  Many  of  the  codes  provided 
that  if  the  counter-claim,  as  established,  exceeds  the  plaintiff's 
demand,  the  defendant  must  have  judgment  for  the  excess. 
See  Fettretch  v.  McKay,  47  N.  Y.  426 ;  Hay  v.  Short,  49  Mo. 
139;  Moore  v.  Caruthers,  17  B.  Mon.  669 ;  Brainard  y.  Lane, 
26  Ohio  St.  632. 

By  §  1059,  cl.  second,  U.  S.  Rev.  Sts.,  and  by  act  of  March  3, 
1887,  c.  359,  24  st.  505,  §  1,  cl.  second,  the  U.  S.  court  of  claims 
has  jurisdiction  to  hear  and  determine  "  all  set-offs,  counter- 
claims, claims  for  damages,  whether  liquidated  or  unliquidated, 
or  other  demands  whatsoever  on  the  part  of  the  government  of 
the  United  States  against  any  claimant  against  the  government 
in  said  court."  The  provisions  of  this  section  have  been  held 
to  be  very  broad ;  Allen  v.  United  States,  17  Wall.  207,  5  C.  of 
Cl.  339 ;  Macauley  v.  United  States,  11  Id.  693 ;  Bonnafon  v. 
United  States,  14  Id.  493.  As  to  "  counter-claim,"  see  further ; 
Neitzey  v.  United  States,  17  C.  of  Cl.  125 ;  Brown  v.  District, 
Id.  420  ;  Betts  v.  District,  20  Id.  448  ;  United  States  v.  O'Grady, 
22  Wall.  641,  8  C.  of  Cl.  451. 

Recoupment.  —  The  doctrine  of  recoupment  "  does  not  rest 
on  the  nature  of  the  right  which  a  plaintiff  has  in  the  contract 
which  he  seeks  to  enforce,  nor  on  the  fact  that  his  interest  in  it 
is  the  same  at  the  time  of  suit  brought  as  when  it  was  originally 
entered  into.  The  essential  elements  on  which  its  application 
depends  are  two  only.  The  first  is,  that  the  damages  which 
the  defendant  seeks  to  set  off  shall  have  arisen  from  the  same 
subject-matter,  or  sprung  out  of  the  same  contract  or  transac- 
tion as  that  on  which  the  plaintiff  relies  to  maintain  his  action ; 


1004  ROSK    V.    HAKT. 

the  other  is,  that  the  ehiiiii  for  (lamages  shall  he  apjainst  the 
plaintilT;  so  that  tlieir  allowauee  hy  way  of  set-off  or  defeiiee  to 
the  coiitraet  declared  on  shall  operate  to  avoid  circuity  (»f  action, 
and  as  a  suhstitute  for  a  distinct  action  against  the  plaintiff  to 
recover  the  same  damages  as  there  relied  on  to  defeat  the 
action."  It  was  held  that  the  case  under  consideration  came 
within  the  rule,  as  the  claim  of  the  defen«lant  for  damages 
arose  out  of  the  note  in  suit,  inasmuch  as  it  rested  on  tiie  in- 
validity of  the  consideration  for  which  it  was  given  and  the 
fraud  of  the  plaintift"  in  obtaining  it ;  Sawyer  v.  Wiswell,  '.>  Allen 
8i>.  See  Harrington  v.  Stratton,  22  Pick.  510;  Stacy  v.  Kemp, 
97  Mass.  10*; ;  Davis  v.  Bean,  114  1(1.358;  Grand  Lodge  v. 
Knox,  20  Mo.  438;  Lufl.urrow  <•.  Henderson,  30  (Ja.  4H2 ; 
Fowlrr  V.  Payne,  41*  Miss.  ;')2;  Weaver  r.  Penny.  17  liiadw. 
028;  Hush  r.  Finucane,  S  Col.  P.>2 ;  James  r.  Duke,  7  Id.  2Sii ; 
Prouty  r.  Five  Thou.sand  Staves,  21  Fed.  Rep.  51X),  23  Id.  loO; 
('.  Aullniaii  iS:  Co.  v.  Ca.se,  68  Wis.  012;  (iilwon  v.  Carlin,  13 
Tenn.  447;  Davis  r.  Wait,  12  Or.  425;  McAlester  v.  Landei-s, 
70  Cal.  7lt :  City  Pank  r.  Smi.sson,  73  (Ja.  422.  It  has  been 
held  that  damages  must  be  speeilically  alleged  so  that  the 
|)laintifY  may  not  be  expo.sed  to  surprise  at  the  trial;  Holt  i'. 
Friederick,  50  Mich.  20;  Whitworth  r.  Thoma.s,  83  Ala.  308. 
See  McKleroy  v.  Sewell,  73  (ia.  057.  The  want  of  nnituality  is 
fatal  to  the  allow\ance  of  damages ;  City  Council  r.  Montgomery 
Water  Works,  70  Ala.  233.  See  Glover  v.  Ciore,  74  (ia.  080; 
Savannah  Pank  v.  Hartridge,  73  Id.  223.  Preach  of  warranty  or 
fraud  in  the  sale  of  personal  property  may  be  given  in  evidence 
when  specially  set  up  in  the  defendant's  answer  by  way  of  re- 
coupment; Wentworth  v.  Dows,  117  Mass.  14.  See  Bradley  v. 
Rea,  14  Allen  20;  Carey  r.  (niillow,  1(»5  Mass.  18;  Owens  v. 
Sturges,  07  111.  306;  Murray  v.  Carlin.  Id.  280.  That  fraud  is 
an  important  element  when  the  cf»nsideration  consists  of  real 
estate  conveyed  b)'  deed  with  covenants  of  title,  see  Powley  v. 
Ilolway,  124  Id.  395.  For  cases  where  the  causes  of  action 
were  independent  and  did  not  arise  out  of  the  same  contract  or 
cause  of  action,  so  that  recoupment  was  not  permitted,  see 
Bartlett  v.  Farrington,  120  Id.  284;  De  Witt  v.  Pierson,  112  Id. 
8 ;  Brighton  Savings  Bank  v.  Sawyer,  132  Id.  185  ;  Home  Sav- 
ings Bank  v.  Boston,  131  Id.  277;  Smith  v.  O.sborn,  143  Id. 
185 ;  Keyes  v.  Western  Slate  Co.,  34  Vt.  81 ;  Samp.son  v. 
Warner.  48  Id.  247.  A  claim  cannot  be  enforced  by  way  of 
recoupment  which  the  defendants  could  not  enforce  by  direct 


ROSE   V.    HART.  1605 

suit;  McCarthy  V.  Henderson,  138  Mass.  310.  "Recoupment 
is  contra-distinguished  from  set-off  in  these  three  essential 
particulars :  1,  in  being  confined  to  matters  arising  out  of,  and 
connected  with,  the  transaction  or  contract  upon  which  the 
suit  is  brought ;  2,  in  having  no  regard  to  whether  or  not  such 
matter  be  liquidated  or  unliquidated ;  and  3,  that  the  judgment 
is  not  the  subject  of  statutory  regulation,  but  controlled  by 
the  rules  of  the  common  law ; "  Myers  v.  Estell,  47  Miss.  4. 
In  Sterling  Organ  Co.  v.  House,  25  W.  Va.  64,  83,  which,  like 
Myers  v.  Estell,  gives  a  history  of  the  subject,  another  difference 
is  stated,  that  "if  the  defendant's  claim  exceeds  the  plaintiff's, 
he  cannot  in  that  action  recover  the  balance  which  was  due  to 
him."  See  Kingman  v.  Draper,  14  Bradw.  577  ;  Fowler  v.  Payne, 
52  Miss.  210 ;  Batterman  v.  Pierce,  3  Hill  171.  But  see  Spring- 
dale  Asso.  V.  Smith,  32  111.  252 ;  Overton  v.  Phelan,  2  Head 
(Tenn.)  445.  There  is  a  distinction  between  "  recoupment " 
and  "  counter-claim  "  dependent  largely  upon  the  definition  of 
"  counter-claim "  in  codes  or  statutes ;  Hurst  v.  Everett,  91 
N.  C.  399.  See  Thompson  v.  Mitchell,  74  Ga.  797.  See 
"  counter-claim,"  supra. 

Formerly,  it  was  said  that  it  was  necessary  that  fraud  should 
be  imputed  to  the  plaintiff,  but  it  is  now  settled  that  the  doc- 
trine is  applicable  where  the  defendant  only  complains  of  breach 
of  contract.  See  Myers  v.  Estell,  47  Miss.  4,  23 ;  Batterman  v. 
Pierce,  3  Hill  171 ;  Ives  v.  Van  Epps,  22  Wend.  155.  Recoup- 
ment is  favored  rather  than  a  separate  action  ;  Martin  v.  Hill, 
42  Ala.  275 ;  Peck  v.  Brewer,  48  111.  54.  Recoupment  has  been 
allowed  in  assumpsit  for  breach  of  agreement  to  the  effect  that 
the  plaintiff  has  violated  the  same  agreement;  Fowler  v.  Payne, 
49  Miss.  32 ;  Andrews  v.  Eastman,  41  Vt.  134 ;  Rogers  v.  Hum- 
phrey, 39  Me.  382.  So,  too,  for  damages  to  the  defendant  by  rea- 
son of  failure  of  plaintiff  to  keep  his  contract ;  Eddy  v.  Clement, 
38  Vt.  486.  So,  also,  for  damages  to  employer  by  want  of  skill  of 
one  claiming  to  be  a  skilled  laborer  ;  De  Witt  v.  CuUings,  32 
Wis.  298.  Government  duties  may  be  deducted  from  the  price 
of  goods  which  were  to  be  delivered  free  of  charge  ;  Fitch  v. 
Archibald,  29  N.  J.  Law  160.  See  Cassidy  v.  LeFevre,  45  N.  Y. 
562 ;  Estep  v.  Fenton,  66  111.  467. 

The  claims  need  not  be  of  the  same  character ;  one  in  con- 
trast may  be  set  off  against  one  in  tort,  and  conversely,  if  they 
arise  out  of  the  same  subject-matter;  Streeter  v.  Streeter,  48 
111.   155  ;  Waterman   v.  Clark,  76   Id.   428  ;  Heck  v.  Shener,  4 


160G  KOSE   V.    HAKT. 

S.  &  R.  249;  Hopping  v.  Quin,  12  Wend.  olT.  See  Carey  v. 
Guillow,  105  Mass.  IH  ;  Hastings  v.  McGee,  06  Penn.  St.  384. 
And  it  is  a  general  rule  that  damages  may  be  recouped  for  any 
breach  of  contract  or  failure  on  the  part  of  the  plaintiff  to 
carry  out  his  agreement  ;  Gordon  v.  Bruner,  40  Mo.  oTO  ;  Hill 
V.  Southwick,  9  R.  I.  299;  Lee  r.  Clements,  4H  Ga,  128;  Finney 
V.  Cadwallader,  5')  Id.  7") ;  Harralson  v.  Stein,  50  Ala.  347 ; 
Pepper  v.  Rowley,  7:}  111.  2f)2:  Scott  v.  Kcntoii,  HI  Id.  90; 
Belden  v.  Perkins,  78  Id.  449 ;  Williams  r.  Sihniidt,  54  111.205; 
Mell  V.  Moony,  30  Ga.  413.  Recoupment  is  often  resorted  to 
in  an  action  for  services  to  show  the  plaintiff's  negligence  or  no 
beneficial  service;  Dodge  v.  Tilcston,  12  Pick.  328;  Phelps  v. 
Paris,  39  Vt.  511;  Sterrett  v.  Houston,  14  Tex.  153;  Still  v. 
Hall,  20  Wend.  51.  And  in  case  of  i-harter  parties  and  in  suits 
by  carriers  for  fieight;  Hearse  v.  Ropes,  1  Spr.  331 ;  Id.  301. 

If  the  vendee  fails  in  his  contract,  he  cannot  recoup  for  a 
default  of  the  vendor  caused  by  such  failure;  Chapman  v. 
Dease,  34  Mich.  375.  There  is  no  recoupment  where  the  dam- 
ages are  too  remote  :  Turner  v.  Gibhs,  50  .Mo.  550.  See  Peck 
V.Jones,  70  I\'nn.  St.  s;-) ;  Johiisnn  v.  LIotTman,  53  .Mo.  504. 
Damages  to  a  lessee  by  tiespasses  or  tortious  Ix'havior  of  the 
lessor  cannot  be  set  oft"  against  the  rent.  See  Hartlett  v.  Far- 
rington,  120  Mass.  284;  Cram  v.  Dresser,  2  Sandf.  120;  Elliott 
V.  Aiken,  45  N.  H.  30.  Generally,  as  observed  above,  the  claim 
for  damages  must  be  against  the  j)laintiff,  so  that  their  allowance 
shall  operate  to  avoid  circuity  of  action.  See  Cummings  v.  Mor- 
ris, 25  N.  Y.  625;  Waterman  v.  Clark,  70  III.  428;  Taylor  r. 
Hardin,  38  Ga.  577 ;  Brown  v.  Crowley,  39  Id.  376 ;  Stilwell  v. 
Chappell,  30  Ind.  72 ;  Fessenden  v.  Forest  Paper  Co.,  03  Me. 
175.  A  party  generally  has  his  election  to  recoup  or  bring  a 
separate  action  ;  Batterman  v.  Pierce,  3  Hill  171 ;  Cook  v. 
!Moseley,  13  Wend.  277.  And  w'here  one  endeavors  to  recoup 
and  also  rely  upon  a  separate  cause  of  action,  he  must  usually 
elect;  Fabbricotti  v.  Launitz,  3  Sandf.  743.  It  is  an  almost  uni- 
versal rule  that  the  right  to  recoup  must  be  specially  set  up  in 
the  defendant's  answer;  Hodgkins  v.  Moulton,  100  Mass.  309; 
Birdsall  v.  Perego,  5  Blatchf.  251 ;  People  v.  Niagara  Common 
Pleas,  12  Wend.  246.  But  see  Springers.  Dwyer,  50  N.  Y.  19; 
Babcock  v.  Trice,  18  111.  420.  As  a  counter-claim,  damages  from 
breaches  of  covenant  in  the  lease  ;  Cook  v.  Soule,  56  N.  Y.  420. 
See  Morgan  v.  Smith,  70  Id.  537  ;  Orton  v.  Noonan,  30  Wis.  Oil ; 
Hay  V.  Short,  49  Mo.  139. 


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